THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Janes  R.  Hutter 
'U7  Bus.  Adm. 


LAW 


&RS 


THE 


PROBATE 

JURISDICTION  AND  PRACTICE 

IN   THE 

COURTS 

OF  THE 

STATE    OF  ILLINOIS, 


CONTAINING    THE 


LAW  OF  WILLS,  OF  ADMINISTRATION  AND  OF  GUARDIAN  AXD  WARD 
AND  RULES  OF  COURT: 


GUIDE  FOR  EXECUTORS,  ADMINISTRATORS, 

GUARDIANS  AND  CONSERVATORS,  IN  THE  MANAGEMENT 

AND  SETTLEMENT  OF  ESTATES. 


BY  EDWARD  J.  HILL, 

AUTHOR  OF  "THE  COMMON  LAW"  AND  "CHANCERY  PRACTICE."  ETC. 


iFOTIRTH     EDITION". 

BY  HENRY  BINMORE, 

ATTORNEY,  ETC. 


CHICAGO: 
E.   B.   MYERS,   LAW   PUBLISHER, 

121  AND  123  MONROE  STREKT. 
1880. 


Entered,  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-three, 

BY    EUGENE   B.    MYERS, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered,  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-five, 

BY    EUGENE    B.    MYERS, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered,  according  to  act  of  Congress,   in  the  year  eighteen  hundred  and  eighty, 

BY   EUGENE    B.    MYERS, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


PREFACE 


As  a  system,  the  Jurisdiction  and  Practice  in  Probate, 
Guardianship  and  Conservation  in  Illinois  are  remarkably 
simple  and  uniform.  The  statutes  have  undergone  very 
little  change  for  many  years,  recent  revisions  and  changes 
apparently,  having  proved  but  little  more  than  a 
re-arrangement.  They  are  well  drawn,  and  have  been 
quite  fully  defined  and  clearly  expounded.  Aiming 
almost  exclusively  at  the  useful  and  practical,  it  devolved 
upon  the  author  to  present  these  statutes  and  decisions 
in  such  a  way  as  to  render  them  easily  understood,  and 
of  ready  reference  not  only  by  the  lawyer,  but  by  the 
non-professional  reader,  the  executor,  the  administrator, 
the  guardian,  the  conservator,  the  business  man,  —  those 
who  have  occasion  to  do  business  in  and  through  the 
probate  court.  This  is  a  more  difficult  task  than  it  might 
at  first  appear. 

To  the  undertaking,  on  a  careful  survey  of  the  whole 
field  of  inquiry,  I  determined  to  bring  a  methodical 
arrangement  which  should  furnish  at  the  outset  a  key 
to  the  entire  subject.  This  arrangement  will  appear  by  a 
glance  at  the  SUMMARY  OF  COXTP^TS.  The  subject-matter 
of  the  jurisdiction  and  of  this  treatise,  therefore,  I  have 
attempted  to  display  hand  in  hand  together,  so  as  to 
evolve  the  practice.  The  high  character  of  the  decisions 
of  the  supreme  court,  and  the  thorough  and  systematic 
statutes  of  Illinois,  when  applied  to  such  an  arrangement, 


IV  PREFACE. 

at  once  gave  assurance  of  the  propriety  of  the  plan  pro- 
posed. They  tit,  with  peculiar  force,  into  their  allotted 
places.  If  I  have  measurably  succeeded  in  making  them 
more  manifest  and  useful,  the  success  of  my  present  under- 
taking, owing  to  the  merit  of  such  statutes  and  decisions 
alone,  seems  to  me  a  foregone  conclusion.  The  performance 
is  now  submitted  to  a  critical,  though  charitable  profession 
and  a  generous  public. 

Acknowledgments  are  due  and  hereby  made  to  Hon. 
James  B.  Brad  well,  to  F.  H.  Kales,  Hiram  Barber,  Jr..  D.  J. 
Avery,  Julius  Rosenthal  and  A.  M.  Pence,  Esqs.,  of  the 
Chicago  bar,  and  to  Hon.  B.  D.  Meek,  County  Judge 
of  Woodford  county,  and  many  others  for  valuable  sug- 
gestions. I  am  greatly  indebted  to  Hon.  P.  H.  Walker. 
of  the  supreme  court,  and  Hon.  M.  R.  M.  Wallace,  County 
Judge  of  Cook  county,  for  their  considerate  counsel  in 
planning  and  perfecting  the  work.  To  all  these  gentle- 
men, the  thanks  of  the  author  and  publisher  are  hereby 
tendered. 

CHICAGO,  August  15,  1873. 

EDWARD  J.  HILL. 


FOURTH    EDITION. 


That  three  »editions  of  this  work  have  been  completely 
exhausted,  demonstrates  its  utility  to  the  classes  of  persons 
to  whose  use  it  was  originally  dedicated.  Since  the  last 
edition  appeared,  there  have  been  numerous  changes  in 
the  laws  treated  upon,  and  many  decisions  of  the  supreme 
court  have  tended  to  their  elucidation.  Probate  courts 
have  also  been  authorized  in  counties  having  a  popula- 
tion of  one  hundred  thousand  persons.  These  matters  I 
have  attempted  to  produce  in  these  pages.  I  have  not 
thought  it  necessary,  on  all  occasions,  to  amend  the  title 
of  the  court  as  contained  in  the  original  acts;  where  the 
county  court  is  mentioned,  it  is  used  as  well  to  include 
probate  courts,  where  they  may  be  established.  This  can 
lead  to  no  error. 

The  Revised  Statutes  of  1874  are  out  of  print,  but  I 
have  retained  the  references  to  that  volume.  This  for  the 
reason  that  the  possessors  of  the  volume  may  refer  to  it, 
if  so  it  shall  please  them.  These  references,  however, 
are  equally  applicable  to  COTII  HAN'S  ANNOTATED  STAT- 
rTKs,  recently  issued  from  the  press.  In  that  volume 
tlif  paging  of  the  statutes  of  1874  is  preserved. 

The  labor  of  revising  this  work  was  Originally  assigned 
to  WILLIAM  MILLER,  Esq.  His  engagements  were  such 
that  a  considerable  delay  seemed  inevitable,  while  there 


Ti  .  PREFACE. 

has  been  a  constant  demand  for  the  work.  Thus  the  task 
was  transferred  to  the  subscriber,  who  trusts  the  addi- 
tional matter  will  increase  the  value  of  the  treatise. 

HENRY  BINMORE. 
CHICAGO,  May  15,  1880. 


SUMMARY  OF  CONTENTS. 


PAGE. 
Chapter  I.  —  Jurisdiction 1-9 

SEC.  I.     Introduction 1-3 

SEC.  II.  County  Courts,  xiii-xxi  —  In  Probate 3-9 

Chapter  II.  —  Testate  Estates  ...   10-60 

SEC.  I.      Wills 10-27 

SEC.  II.    Probate  of  Wills 27-53 

SEC.  III.  Executors 53-60 

1.  Appointment 53-54 

2.  Powers  and  Duties 54-57 

3.  Renunciation,  Resignation  and  Removal  57-60 

Chapter  III.  —  Intestate  Estates 61-101 

SEC  .   I .       Introduction    61-64 

SEC.   II.     Appointment  of  Administrators 64-82 

SEC.   III.  Powers  and  Duties 82-96 

SEC.   IV.   Resignation  and  Removal 96-101 

Chapter  IV.  —  Persons  and  Estates  of  Infants  or  Minors,  102-135 

SEC.   I.       Infants 102-107 

SEC.   II.     Appointment  of  Guardians 107-117 

SEC.   III.  Powers  and  Duties  ;  Guardian  and  Ward 118-122 

SEC  .  IV .   Resignation  and  Removal 122-135 

Chapter  V.  —  Incapacitated  Persons  and  their  Estates. . .  135-156 

SEC.  I.       Idiots,  Lunatics,  Drunkards,  etc 135-138 

SEC.   II.     Appointment  of  Conservators 138-147 

SEC.  III.   Commitment  and  Detention  ;  Forms 147-156 

Chapter  VI.  —  Personal  Estate  in  A  dministrafion 157-185 

SEC.  I.     Kinds  of  Personal  Property;  collection  and  disposition  of, 

by  the  executor  or  administrator 157-183 

SEC.   II.  In  the  hands  of  Guardians  and  Conservators 183-185 


VI '1  SUMMARY   OF   CONTENTS. 

PAGE. 
Chapter  VII.  —  Real  Estate  in  Administration 186-214 

SEC.   I.  Through  the  Executor 186-192 

SEC.   II.  Through  the  Administrator 192-207 

SEC.   III.  Through  the  Guardian 207-214 

SEC.  IV.  Through  the  Conservator 138,  213 

Chapter    VIII.  —  Expenses,    Allowances,    Claims    and 

Legacies  215-237 

SEC.  I.       Demands  classified  ;  the  widow's  award ;  funeral  expenses, 

and  expenses  of  last  illness 215-222 

SEC  .   II .     Claims  against  Estates  222-232 

SEC.   III.  Legacies 232-237 

Chapter  IX.  —  Accounts 238-250 

SEC.   I.     By  the  Executor  or  Administrator 238-242 

SEC.  II.  By  the  Guardian  and  Conservator 243-250 

Chapter  X.  — Descent 251-271 

The  Law  of 251-271 

Chapter  XI.  —  Appeals 272-274 

From  the  County  Court 272-274 

Chapter  XII.  —  Miscellaneous  Matters 275-203 

Miscellaneous  Matters 275-297 

Miscellaneous  Provisions  of  the  Act  of  April  1,  1872 278-283 

Miscellaneous  Statutes   283-289 

Miscellaneous  Decisions 289-291 

Proclamation  by  Sheriff 291 

Oaths  and  Affirmations  ;  Forms 291-293 

Chapter  XIII.  —  Costs  and  Fees 294-300 

Costs  in  Court  and  Officer's  Fees  294-300 

Chapter  XIV.  —  The  Probate  Hecord 295-337 

Practice,  Pleadings,  Suggestions  and  Forms 295-337 

Logical  Summary  of  the  Act  of  April  1,  1872  339-343 

Logical  Summary  of  Act  of  March  20,  1872 343,  344 

Addenda 344-346 

Rules  of  the  Probate  Court  of  Cook  County 347-352 


JURISDICTION 


COUNTY  AND  PROBATE  COURTS; 


SECTION  1.  There  shall  be  in  each  of  the  counties  of  this  State, 
now  created  and  organized,  or  which  may  hereafter  be  created  or 
organized,  a  court  of  record,  to  be  styled  "  The  County  Court  of 
County."  Said  court  shall  have  a  seal. 

§  2.  Said  courts  shall  sit  in  the  court-houses  or  usual  places  of 
holding  courts  in  the  several  counties  of  this  State,  or  in  suitable 
rooms  provided  therefor  at  the  county  seat. 

§  3.  The  county  judge  in  each  county  shall  be  elected  on  the 
Tuesday  after  the  first  Monday  in  November,  in  the  year  1877,  and 
on  the  Tuesday  after  the  first  Monday  in  November  every  fourth 
year  thereafter,  and  shall  enter  upon  the  duties  of  his  office  on  the 
first  Monday  of  December  after  his  election,  and  shall  hold  his  office 
for  four  years  and  until  his  successor  is  elected  and  qualified. 

§  4.  The  county  judge  shall,  before  entering  upon  the  duties  of 
his  office,  take  and  subscribe,  and  file  with  the  secretary  of  state, 
the  following  oath  : 

"  I  do  solemnly  swear  (or  affirm,  as  the  case  may  be},  that  I  will 
support  the  constitution  of  the  United  States,  and  the  constitution 
of  the  State  of  Illinois,  and  that  I  will  faithfully  discharge  the 
duties  of  the  office  of  county  judge  according  to  the  best  of  my 
ability." 

§  5.  County  courts  shall  have  jurisdiction  in  all  matters  of  pro- 
bate, settlements  of  estates  of  deceased  persons,  appointment  of 
guardians  and  conservators,  and  settlements  of  their  accounts;  all 
matters  relating  to  apprentices;  proceedings  for  the  collection  of 
taxes  and  assessments  ;  and  in  proceedings  by  executors,  adminis.- 
trators,  guardians  and  conservators  for  the  sale  of  real  estate  for 
the  purposes  authorized  by  law,  and  such  other  jurisdiction  as  is  or 
may  be  provided  by  law.  All  of  which,  except  as  hereinafter  pro- 

*  An  act  to  extend  the  jurisdiction  of  county  courts,  and  to  provide  for  the  practice 
thereof,  to  fix  the  time  for  holding  the  same,  and  to  repeal  an  act  therein  named. 
Appro-  ed  March  2V,  1874  In  force  July  1,  1874,  as  since  amended.  Cothran  s  Ann  d 
Stats  .  410-^4. 


JURISDICTION    OF  THC 


Act  of  187-1,  as  amended. 


vided,  shall  be  considered  as  probate  matters,  and  be  cognizable  at 
the  probate  terms  hereinafter  mentioned. 

§  6.  The  terms  of  the  county  court  for  probate  matters  shall  com- 
mence on  the  third  Monday  of  each  mouth  during  the  year,  except 
the  months  prescribed  in  this  act  for  the  holding  of  law  terms,  and 
shall  be  always  open  for  the  granting  of  letters  testamentary  and 
guardianship,  and  for  the  transaction  of  probate  business,  and 
hearing  applications  by  insolvent  debtors  for  discharge  from  arrest 
or  imprisonment,  and  all  matters  cognizable  at  the  probate  terms 
shall  also  be  cognizable  at  the  law  terms. 

§  7.  The  county  courts  shall  have  concurrent  jurisdiction  with 
the  circuit  courts  in  all  that  class  of  cases  wherein  justices  of  the 
peace  now  have,  or  may  hereafter  have,  jurisdiction  where  the 
amount  claimed  or  the  value  of  property  in  controversy  shall  not 
exceed  one  thousand  dollars  ($1,000),  concurrent  jurisdiction  in  all 
cases  of  appeals  from  justices  of  the  peace  and  police  magistrates: 
Provided,  appeals  from  the  county  judge,  when  sitting  as  justice  of 
the  peace,  shall  bo  taken  to  the  circuit  court  as  now,  and  in  all 
criminal  offenses  and  misdemeanors  where  the  punishment  is  not 
imprisonment  in  the  penitentiary  or  death,  all  of  which  shall  be 
cognizable  at  the  law  terms  hereinafter  mentioned. 

§  8.  The  law  terms  of  the  county  court,  except  as  otherwise  herein- 
after provided,  shall  commence  on  the  second  Monday  of  the 
months  as  follows,  to  wit:  in  the  counties  of  — 

§    9.  Adams,  on  the  first  Mondays  of  February,  June  and  October. 

§  10.  Alexander,  in  March,  July  and  November. 

§  11.   Bond,  in  January,  June  and  November. 

§  12.   Boone,  in  March,  June  and  December. 

§  13.  Brown,  in  January  and  June. 
1£.   Bureau,  in  January,  June  and  October. 

15.  Calhoun,  in  January  and  June. 

16.  Carroll,  in  February,  June  and  November. 

17.  Cass,  in  April  and  October. 

18.  Champaign,  in  January,  May,  August  and  November. 
§  19.   Christian,  in  April,  June,  October  and  December. 

§  20.   Clark,  in  January,  June  and  September. 
§  31.   Clay,  on  the  third  Monday  in  January  and  June. 
§  22.   Clinton,  in  February  and  August. 
§  23.  Coles,  in  March  and  July. 

§  24.   Cook,  in  January,  February,  March,  April,  May,  June,  July, 
August,  September,  October,  November  and  December. 
§  25.   Crawford,  in  January  and  June. 
§  26.   Cumberland,  in  October. 


COUXTY     COURTS.  XI 


Act  of  1874,  as  amended. 


§  27.  DeKalb,  in  April,  July  and  December. 
§  28.  DeWitt,  in  January  and  June. 
§  29.  Douglas,  in  January  and  July. 
§  30.  Du  Page,  in  January  and  June. 
§  31.  Edgar,  in  June  and  December. 
§  32.  Edwards,  in  January  and  July, 
§  33.  Effingham,  in  June  and  November. 
§  34.  Fayette,  in  June  and  December. 
§  35.  Ford,  in  February  and  June. 

§  36.  Franklin,  on  the  third  Monday  of  February  and  August. 
§  37.  Fulton,  in  February  and  October. 

§  38.  Gallatin,  on  the  third  Monday  of  April  and  November. 
§  39.  Greene,  in  December  and  June. 
§  40.  Grundy,  in  January,  June  and  September. 
§  41.  Hamilton,  in  June  and  December. 
§  42.  Hancock,  in  April,  July  and  December. 
§  43.  Hardin,  in  February  and  August. 
§  44.  Henderson,  in  April  and  October. 
§  45.  Henry,  in  April,  August  and  December. 
§  46.  Iroquois,  in  January,  May  and  October. 
§  47.  Jackson,  in  January,  May  and  November. 
§  48.  Jasper,  in  February  and  August. 

§  49.  Jefferson,  on  the  third  Monday  of  March  and  September. 
§  50.  Jersey,  in  January  and  June. 

§  51.  Jo  Daviess,  in  April,  December,  and  on  the  third  Monday 
of  September. 

§  52.  Johnson,  in  February  and  August. 

§  53.  Kane,  in  June,  September  and  December. 

§  54.  Kankakee,  in  February,  July  and  November. 

§  55.  Kendall,  in  March,  September  and  December. 

§  56.  Knox,  in  April,  August  and  December. 

§  57.  Lake,  in  January  and  June. 

§  58.  LaSalle,  in  March,  September  and  December. 

§  59.  Lawrence,  in  April  and  October. 

§  60.  Lee,  in  December  and  June. 

§  61.  Livingston,  in  March,  June,  September  and  December. 

§  62.  Logan,  in  March,  August  and  November. 

§  63.  McDonough,  in  June  and  December. 

§  64.  McHenry,  in  March  and  November. 

§  65.  McLean,  in  April,  August  and  December. 

§  66.  Macon,  in  February,  July  and  October. 


Xll  JURISDICTION    OF   TUB 

Act  of  1874,  as  amended. 

§  67.  Macoupiu,  in  June. 

§  ti8.  Madison,  in  February  and  August. 

§  69.  Marion,  in  April  and  November. 

§  70.  Marshall,  on  the  fourth  Mondays  of  April,  August  and 
November. 

§  71.  Mason,  in  January,  June  and  October. 

§  72.  Massac,  in  February  and  July. 

§  73.  Menard,  in  January,  May  and  September. 

§  74.  Mercer,  in  January,  April,  July  and  October. 

§  75.  Monroe,  in  January  and  June. 

§  TO.  Montgomery,  in  Januai'y,  May  and  September. 

§  77.  Morgan,  on  f,hc  second  Monday  in  January,  and  on  the  third 
Mondays  in  April  and  September. 

§  78.  Moultrie,  in  January  and  June. 

§  79.  Ogle,  in  February,  June  and  November. 

§  80.  Peoria,  in  January,  April  and  September. 

§  81.  Perry,  in  February  and  September. 

§  82.  Piatt,  in  June  and  November. 

§  83.  Pike,  in  January  and  August. 

§  84.  Pope,  on  the  third  Monday  of  July  of  each  year. 

§  85.  Pulaski,  in  January,  June  and  September. 

§  86.  Putnam,  in  October. 

§  87.  Randolph,  in  January  and  June. 

§  88.  Richland,  in  January  and  July. 

§  89.  Rock  Island,  in  March,  July  and  November. 

§  90.  St.  Clair,  in  March,  July  and'  November. 

§  91.  The  law  terms  of  the  county  court  of  Saline  county  shall 
commence  on  the  second  Mondays  in  the  months  of  February  and 
August. 

9l£.  Sangamon,  in  April,  July  and  December. 

92.  Schuyler,  in  February  and  August. 

93.  Shelby,  in  January  and  July. 

94.  Scott,  in  February  and  August. 

95.  Stark,  in  June  and  December. 

96.  Stephenson,  in  February,  May  and  October. 

97.  Tazewell,  in  January,  April  and  October. 

98.  Union,  in  May  and  November. 

99.  Vermilion,  in  January,  Anril  and  October. 

100.  Wabash,  in  October. 

101.  Warren,  in  February,  April,  July  and  October. 

102.  Washington,  in  January  and  July. 

103.  Wayne,  in  January  and  July. 

104.  White,  in  February  and  August. 


COUNTY    COURTS. 


Act  of  1874,  as  amended. 


§  105.   Whiteside,  in  January,  May  and  October. 

§  106.  Will,  in  March,  July,  September  and  November. 

§  107.   Williamson,  in  March,  August  and  December. 

§  108.   Winnebago,  in  March  and  November. 

§  109.   Woodford,  in  August. 

§  109^.  The  court  shall  continue  open  from  day  to  day  until  all 
business  before  it  is  disposed  of. 

§  110.  Unless  the  court  shall  otherwise  order,  the  jury  for  the 
law  terms  of  the  county  court  shall  be  drawn  and  summoned  in  the 
same  manner  as  is  provided  for  the  drawing  and  summoning  juries 
for  the  terms  of  the  circuit  court.  When  a  jury  is  not  summoned 
as  above  provided,  it  shall  be  the  duty  of  said  court,  on  the  first 
day  of  each  term  thereof,  to  call  all  the  cases  for  trial  on  the  docket, 
to  ascertain  whether  a  jury  will  be  required.  If  a  jury  shall  be 
demanded  by  either  party  to  any  suit  pending,  or  by  any  defendant 
or  the  State's  attorney  in  any  criminal  suit,  the  court  shall  there- 
upon set  such  case  or  cases  for  trial,  and  direct  the  clerk  of  said 
court  to  issue  a  venire  for  twelve  competent  jurors,  unless  the  par- 
ties to  such  suit  or  criminal  proceeding  shall  elect  to  have  the 
same  tried  by  six  jurors,  and  deliver  the  same  to  the  sheriff  or  cor- 
oner, who  shall  summon  such  jurors  from  the  body  of  the  county, 
to  be  and  appear  before  said  court  at  the  term  set  for  the  return  of 
said  venire;  and  if,  by  reason  of  non-attendance,  challenge  or  other- 
wise, said  jury  shall  not  be  full,  the  panel  may  be  filled  by  talesmen. 
Said  court  shall  have  the  same  power  to  compel  the  attendance  of 
jurors  and  witnesses  as  the  circuit  court  has,  and  shall  be  governed 
by  the  same  rules  in  impaneling  the  jury.  Said  court  may  retain 
such  jury  for  all  the  jury  trials  of  said  term.  The  per  diem  and 
mileage  of  said  jurors  shall  be  the  same  as  they  are  for  similar  ser- 
vices in  the  circuit  court,  to  be  paid  out  of  the  county  treasury 
upon  the  certificate  of  the  county  clerk:  Provided,  that  in  case  the 
sheriff,  coroner  or  bailiff  be  interested  in  any  jury  case  pending,  or 
in  case  any  party  interested,  or  any  attorney,  may  object  to  any 
sheriff,  coroner  or  bailiff  selecting  the  jury,  if  the  court  shall  think 
such  objection  reasonable,  the  court  shall  appoint  an  impartial 
bailiff  to  summon  such  jury. 

§  111.  The  court  shall  have  the  power  to  impanel  a  jury  in  any 
case  cognizable  at  the  probate  terms  as  well  as  at  the  law  terms, 
whenever  it  shall  be  necessary  for  the  trial  of  any  matter  pending 
before  the  court. 


JURISDICTION   OF  THE 


Act  of  1874. 


§  112.  The  process,  practice  and  pleadings  in  said  court  in  com- 
mon-law cases  shall  be  the  same  as  in  the  circuit  court  in  similar 
cases,  and  the  process,  orders  and  judgments  of  said  court  shall 
have  the  same  forms,  force,  lien  and  effect  as  in  like  cases  in  the 
circuit  court;  and  the  clerk  of  said  county  court  shall  charge  and 
Collect  like  fees  as  the  clerk  of  the  circuit  court  for  similar  services. 
Process  in  cases  cognizable  at  the  law  terms  of  the  county  court 
shall  be  made  returnable  at  the  law  terms. 

§  113.  The  sheriff,  in  person  or  by  his  deputy,  shall  attend  the 
sittings  of  the  county  court  of  his  county,  preserve  order  in  the 
same,  and  execute  the  legal  commands  and  process  thereof:  Pro- 
vided, that  the  sheriff  shall  receive  pay  for  attending  upon  the 
sittings  of  said  court  only  when  requested  so  to  do  by  the  court. 

§  114.  Whenever  the  county  judge  of  any  county  is  interested  in 
the  estate  of  any  diseased  person,  and  the  letters  testamentary  or 
of  administration  shall  be  gran  table  in  the  county  of  such  judge, 
such  facts  shall  be  entered  upon  the  records  of  such  court  and  cer- 
tified to  the  circuit  court  of  such  county  :  Provided,  that  in  case 
the  judge  is  interested  only  as  a  creditor,  no  change  need  be  made 
except  in  relation  to  his  claim. 

§  115.  Upon  the  filing  of  a  copy  of  such  certificate  with  the  clerk 
of  the  circuit  court,  such  court  shall  have  full  and  complete  juris- 
diction in  all  matters  pertaining  to  such  estate,  and  may  make  all 
orders  and  take  all  proceedings  therein  which  might  have  been 
made  or  taken  in  the  county  court  if  the  judge  thereof  had  not 
been  interested. 

§  J16.  In  all  cases  transferred  to  the  circuit  court  under  the  two 
preceding  sections,  the  clerk  of  such  court  shall  have  the  same 
authority  to  grant  citations  and  letters  testamentary  and  of  adminis- 
tration in  vacation  as  is  given  to  clerks  of  the  county  courts. 

§  117.  All  offenses  cognizable  in  county  courts  shall  be  prose- 
cuted by  information  of  the  State's  attorney,  attorney-general  or 
some  other  person,  and  when  an  information  is  presented  by  any 
person  other  than  the  State's  attorney  or  attorney-general,  it  shall 
be  verified  by  affidavit  of  such  person  that  the  same  is  true,  or  that 
the  same  is  true  as  he  is  informed  and  believes.  Before  an  infor- 
mation is  filed  by  any  person  other  than  the  State's  attorney  or 
attorney-general,  the  judge  of  the  court  shall  examine  the  informa- 
tion, and  may  examine  the  person  presenting  the  same,  and  require 
other  evidence  and  satisfy  himself  that  there  is  probable  cause  for 


COUXTY    COURTS.  XV 


Art  of  1874,  as  amended. 


filing  the  same  and  so  indorse  the  same.  Every  information  shall 
set  forth  the  offense  with  reasonable  certainty,  substantially  as  re- 
quired in  an  indictment,  and  may  be  filed  either  in  term  time  or  in 
vacation,  and  the  proceedings  thereon  shall  be  the  same,  as  near  as 
may  be,  as  upon  indictment  in  the  circuit  court,  except  as  herein 
otherwise  provided.  Nothing  in  this  act  shall  be  construed  to  affect 
the  jurisdiction  of  justices  of  the  peace.* 

§  118.  The  court  in  term  time,  or  the  judge  in  vacation,  shall 
fix  the  amount  of  bail  to  be  required  of  the  accused,  and  the  clerk 
shall  indorse  the  same  upon  the  capias,  except  that  when  the  capias 
is  issued  in  term  time  the  same  may  be  made  returnable  forthwith 
when  it  shall  not  be  necessary  to  fix  the  amount  of  bail  until  the 
accused  is  brought  into  court. 

§  119.  The  court  may  receive  the  plea  of  guilty  and  pass  judg- 
ment, or  if  the  accused  will  waive  a  jury  and  be  tried  by  the  court 
without  a  jury,  the  court  may,  upon  notice  being  first  given  to  the 
State's  attorney,  try  the  cause  and  pass  judgment  as  well  at  a  pro- 
bate as  a  law  term  of  said  court. 

§  120.  When  the  grand  jury  of  the  circuit  court  shall  indict  for 
offenses  cognizable  in  the  county  court,  such  indictments  may,  in 
the  discretion  of  said  circuit  court,  be  certified  under  the  seal  thereof 
to  the  county  court  for  process  and  trial,  which  process  shall  be  the 
same  as  like  process  in  the  circuit  court. 

§  121.  In  certifying  indictments  from  the  circuit  court  to  the 
county  court,  the  clerk  of  the  circuit  court  may  use  the  following 
form,  substantially : 

STATE  OF  ILLINOIS,) 

County  of  ,     )  * 

"  I,  ,  clerk  of  the  circuit  court,  in  and  for  the  county  of  ,  afore- 

said, do  certify  that  the  within  bill  of  indictment  was  on  the  day  of  , 

duly  presented  in  open  court  by  the  grand  jury  of  said  county,  and  being  duly 
examined  by  the  said  circuit  court,  it  was  ordered  by  the  court  that  the  same 
be  certified  by  the  clerk  of  the  circuit  court  to  the  county  court  for  process  and 
trial,  which  is  done  accordingly." 

Which  certificate,  when  indorsed  on  the  back  of  any  indictment, 
shall  be  sufficient  to  warrant  a  trial  and  conviction  of  any  party 
charged  in  any  indictment  so  certified,  and  shall  be  deemed  a  suffi- 
cient record  to  authorize  the  county  court  to  try  the  party  so 

•Judge  McAllister  holds  this  section  to  he  unconstitutional,  as  in  conflict  with  §  5, 
Art.  II.  and  §  29,  Art.  VI,  Const.  1870.  See  The  People  ex  rel.  Smith  v.  Brown,  67  111. 
435:  Myers  v.  The  Periple,  67  iy.  503. 


XVI  e  JURISDICTION   OF   THE 

Act  of  1874,  as  amended 

indicted :  Provided,  either  party  may  ask  for  and  obtain  a  rule  on 
the  clerk  of  the  circuit  court  for  a  complete  record,  duly  and 
properly  certified,  of  any  cause  pending  in  the  county  court  having 
been  certified  as  aforesaid ;  and  it  shall  be  the  duty  of  the  clerk  of 
the  circuit  court  to  obey  any  rule  of  the  county  court  for  the  pur- 
pose aforesaid,  and  when  a  complete  record  shall  be  so  certified  to 
the  county  court,  said  court  shall  be  governed  thereby  in  all  respects 
in  all  its  proceedings. 

§  122.  Appeals  may  be  taken  from  the  final  orders,  judgments 
and  decrees  of  the  county  courts  to  the  circuit  courts  of  their 
respective  counties  in  all  matters  except  as  provided  in  the  follow- 
ing section,  upon  the  appellant  giving  bond  and  security  in  such 
amount  and  upon  such  conditions  as  the  court  shall  approve,  except 
as  otherwise  provided  by  law.  Upon  such  appeal,  the  case  shall  be 
tried  de  novo. 

§  123.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted 
from  the  final  orders,  judgments  and  decrees  of  the  county  court  to 
the  supreme  court  or  appellate  court,  should  such  a  court  be  estab- 
lished by  law,  in  proceedings  for  the  sale  of  lands  for  taxes  and 
special  assessments,  and  in  all  common  law  and  attachment  cases, 
and  cases  of  forcible  detainer  and  forcible  entry  and  detainer. 
Such'appeals  and  writs  of  error  shall,  when  not  otherwise  provided, 
be  taken  and  prosecuted  in  the  same  manner  as  appeals  from  and 
writs  of  error  to  circuit  courts. 

In  all  appeals  in  criminal  cases,  the  court  shall  fix  the  amount  of 
the  recognizance,  and  when  the  same  is  executed,  the  defendant 
shall  be  discharged  from  imprisonment  until  otherwise  ordered  by 
the  appellate  court,  on  the  dismissal  or  trial  of  the  appeal;  and  the 
securities  may  deliver  their  principal,  and  be  subject  to  liabilities, 
to  be  enforced  as  in  other  cases  of  recognizance. 

§  124.  The  several  county  courts  shall  have  the  power  to  hear 
and  determine  all  causes  pending  in  such  courts  at  the  time  this  act 
shall  take  effect,  and  to  enforce  all  judgments,  orders  and  decrees 
entered  therein,  or  in  any  cause  of  which  they  may  have  had  juris- 
diction previous  to  the  taking  effect  of  this  act.  Appeals  and  writs 
of  error  may  be  prosecuted  from  such  judgments,  orders  and 
decrees. 

§  125.  An  act  entitled  "An  act  to  increase  the  jurisdiction  of 
county  courts,"  in  force  July  1,  1872,  is  hereby  repealed :  Provided, 
that  nothing  herein  contained  shall  be  construed  to  affect  any  rights 
or  remedies  that  may  have  accrued  under  said  act  hereby  repealed. 


PROBATE   COURTS.  XV11 


Act  of  1877. 


JSior  shall  any  suit  or  proceeding  pending  in  the  county  court,  under 
the  act  hereby  repealed,  be  abated  by  such  repeal,  and  all  such  suits 
or  proceedings  pending,  when  this  act  takes  effect,  shall  stand  con- 
tinued to  the  first  term  of  court  to  be  held  under  the  provisions  of 
this  act. 

SECTION  1.  That  the  county  judges  of  the  several  counties  of 
this  State,  with  like  privileges  as  the  judges  of  the  circuit  courts  of 
this  State,  may  interchange  with  each  other,  hold  court  for  each 
other,  and  perform  each  other's  duties  when  they  find  it  necessary 
or  convenient.* . 


PROBATE  COURTS,  f 

SECTION  1.  Be  it  enacted  ~by  the  People  of  the  State  of  Illinois} 
represented  in  the  General  Assembly:  That  there  shall  be  estab- 
lished in  each  county  of  this  State,  now  created  and  organized,  OP 
which  may  be  hereafter  created  and  organized^  and  which  has  a 
population  of  one  hundred  thousand,  or  more,  a  court  of  record  to 
be  styled,  "  The  Probate  Court  of  (name  of)  county."  Such  court 
shall  have  a  seal  and  may  from  time  to  time,  as  may  be  necessary, 
renew  or  alter  the  same.  The  expense  of  such  seal,  and  of  renew- 
ing and  altering  the  same,  shall  be  paid  by  the  county. 

§  2.  Said  courts  shall  be  held  in  the  court-houses  of  the  respect- 
ive counties  in  which  they  shall  be  established,  or  in  the  usual 
places  of  holding  courts,  or  in  suitable  rooms  provided  therefor  at 
the  county  seat. 

§  3.  The  judge  of  said  court  in  each  county,  in  which  such  court 
shall  be  established,  shall  be  elected  on  the  Tuesday  next  after  the 
first  Monday  in  November,  at  the  same  election  at  which  the  county 
judge  is  elected,  and  every  fourth  year  thereafter,  and  shall  enter 
upon  the  duties  of  his  office  on  the  first  Monday  of  December  after 
his  election,  and  shall  hold  his  office  for  a  term  of  four  years  and 
until  his  successor  is  elected  and  qualified,  and  shall  be  known  as 
the  probate  judge  of  (name  of)  county. 

§  4.  The  probate  judge  of  each  county  in  which  a  probate  court 
shall  be  established  shall,  before  entering  upon  the  duties  of  his 

*  An  act  to  authorize  county  judges  to  interchange,  hold  court  for  each  other  and 
perform  each  other's  duties.  Approved  May  31,  1879;  in  force  July  1,  1879. 

t  An  act  to  establish  probate  courts  in  all  counties  having  a  population  of  one  hun- 
dred thousand,  or  more,  to  define  the  jurisdiction  thereof,  and  regulate  the  practice 
therein,  and  to  fix  the  time  for  holding  the  same.  Approved  April  27,  and  in  force 
July  1,  1877.  Laws  1877,  p.  79.  Cothran's  Ann'd  Rev  Stats.,  424  et  seq. 


XY111  PROBATE    COURTS. 


Act  of  1877. 


office,  take  and  subscribe  and  file  with  the  secretary  of  State  the 
oath  required  by  the  constitution. 

§  5.  Probate  courts  shall  have  original  jurisdiction  in  all  matters 
of  probate,  the  settlement  of  estates  of  deceased  persons,  the 
appointment  of  guardians  and  conservators  and  settlement  of  their 
accounts,  and  in  all  matters  relating  to  apprentices,  and  in  cases  of  the 
sales  of  real  estate  of  deceased  persons  for  the  payment  of  debts.  And 
as  soon  as  such  court  is  organized  in  any  county,  the  county  court 
of  such  county  shall  turn  over  to  the  probate  court  all  of  its  pro- 
bate records,  and  all  files,  books  and  papers  of  every  kind  relating 
to  probate  matters  in  such  county  court,  and  all  records,  files  and 
papers  in  matters  of  guardianship  and  conservators,  and  the  clerk 
of  the  probate  court  shall  be  authorized  to  demand  and  receive  from 
the  county  clerk  all  such  records,  files,  books  nnd  documents,  and 
upon  the  receipt  thereof,  the  probate  court  shall  proceed  to  finish 
and  complete  all  unfinished  business  relating  to  probate,  guardian- 
ship and  conservatory  matters  in  the  manner  provided  by  law. 

§  6.  The  terms  of  the  probate  court  shall  commence  on  the  third 
Monday  of  each  month  during  the  year,  and  shall  be  always  open 
for  the  granting  of  letters  testamentary,  letters  of  administration 
and  guardianship,  and  for  the  transaction  of  probate  business  and 
all  other  matters  of  which  it  has  jurisdiction,  and  shall  continue 
open,  from  day  to  day,  until  all  business  before  it  is  disposed  of. 

§  7.  The  probate  court  shall  have  the  power  to  impanel  a  jury, 
for  the  trial  of  issues  or  matters  of  fact,  in  any  matter  or  matters 
pending  before  the  court,  and  for  such  purpose  the  court  may  at 
any  time,  when  it  becomes  necessary  to  have  a  jury,  direct  the  clerk 
of  said  court  to  issue  a  venire  for  either  six  or  twelve  competent 
jurors  and  deliver  the  same  to  the  sheriff  or  coroner  or  any  bailiff 
of  the  court,  who  shall  summon  such  jurors  from  the  body  of  the 
county  to  be  and  appear  before  said  court  at  any  term  or  day  named 
in  such  venire,  and  if  by  reason  of  non-attendance,  challenge  or 
otherwise,  said  jury  shall  not  be  full,  the  panel  may  be  filled  by  tales- 
men. Said  court  shall  have  the  same  power  to  compel  the  attendance 
of  jurors  and  witnesses  as  the  circuit  court  has,  or  may  hereafter  have, 
and  jurors  to  act  as  such  in  said  court  shall  possess  the  same  qualifi- 
cations and  be  entitled  to  the  same  privileges  of  exemption  and  sub- 
ject to  the  same  rules  of  challenge,  for  cause  or  peremptorily,  as  ju- 
rors in  the  circuit  courts  of  the  State.  When  such  jury  sha'l  b^ 
brought  into  said  court  the  court  may  retain  such  jury  during  the 


PROBATE    COURTS.  XIX 


Act  of  1877. 


t>rm,  or  any  portion  thereof,  as  may  be  necessary  for  the  trial  of  any 
matter  or  matters  of  fact  which  in  the  discretion  of  the  court 
requires  a  jury.  The  per  diem  and  mileage  of  said  jurors  shall  be 
the  same  as  they  are  for  jurors  in  the  circuit  court,  to  be  paid  out 
of  the  county  treasury  upon  the  presentation  of  a  certificate  of  the 
clerk  of  said  court,  issued  to  each  juror  at  the  time  of  thei  discharge, 
certifying  to  the  number  of  days  he  may  have  attended  court  as  a 
juror  and  the  amount  of  juror  fees  and  mileage  due  him. 

§  8.  The  process,  practice  and  pleadings  in  said  court  shall  be  the 
same  as  those  now  provided,  or  which  may  hereafter  be  provided, 
for  the  probate  practice  in  the  county  courts  of  the  State,  and  all 
laws  now  in  force,  or  which  may  hereafter  be  enacted  concerning  wills, 
or  the  administration  of  estates,  shall  govern  and  be  applicable  to 
the  practice  in  the  probate  courts  of  the  State. 

§  9.  The  sheriff,  in  person  or  by  his  deputy,  shall  attend  the  sit- 
tings of  the  probate  court  of  his  county,  preserve  order  in  the  same 
and  execute  the  legal  commands  and  process  thereof. 

§  10.  Whenever  the  probate  judge  of  any  county  is  interested  in 
the  estate  of  any  deceased  person,  and  the  letters  testamentary  or 
of  administration  shall  be  gran  table  in  the  county  of  such  judge, 
such  estate  shall  be  probated  in  the  county  court  of  such  county, 
unless  the  county  judge  be  also  interested,  in  which  event  the 
facts  of  such  interest  may  be  entered  of  record  in  the  probate  court 
of  the  county,  and  certified  to  the  circuit  court  of  the  county,  and 
upon  the  filing  of  such  certificate  with  the  clerk  of  the  circuit 
court,  such  court  shall  have  full  and  complete  jurisdiction  in  all 
matters  pertaining  to  such  estate,  under  all  laws  of  this  State  con- 
cerning the  administration  of  estates  or  the  probate  of  wills;  and  in  all 
cases  so  transferred  the  clerk  of  said  circuit  court  shall  have  the  same 
power  in  all  matters  of  such  estate,  in  term  time  or  vacation,  that 
the  clerk* of  the  probate  or  county  court  has :  Provided,  that,  if  the 
probate  judge  is  only  interested  as  a  creditor,  no  change  may  be 
made,  except  in  relation  to  his  claim. 

§  11.  Appeals  may  be  taken  from  the  final  orders,  judgments  and 
decrees  of  the  probate  courts  to  the  circuit  courts  of  their  respective 
counties,  in  all  matters  except  in  proceedings  on  the  application  of 
executors,  administrators,  guardians  and  conservators  for  the  sale  of 
real  estate,  upon  the  appellant  giving  bond  and  security  in  such 
amount  and  upon  such  condition  as  the  court  shall  approve,  and 
upon  such  appeal  the  case  shall  be  tried  de  novo. 


XX  PROBATE    COURTS. 


Act  of  1877. 


§  12.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted 
from  the  final  orders  and  decrees  of  the  probate  court  to  the  supreme 
court  in  proceedings  on  the  application  of  executors,  administra- 
tors, guardians  and  conservators  for  the  sale  of  real  estate.  Such 
appeals  and  writs  of  error,  vhen  not  otherwise  provided,  shall  be 
taken  and  prosecuted  in  the  same  manner  as  appeals  from  and  writs 
of  error  to  the  circuit  court. 

§  13.  There  shall  be  elected  at  the  same  time  as  the  probate  judge 
is  elected,  a  clerk  of  the  probate  court,  who  shall  hold  his  office  for 
a  term  of  four  years  and  until  his  successor  shall  be  elected  and 
qualified.  Before  entering  upon  the  duties  of  his  office  he  shnll 
take  and  subscribe  the  oath  required  by  the  constitution  of  the 
State. 

§  14.  Every  such  clerk  shall,  before  entering  upon  the  duties  of 
his  office,  give  bond  with  two  or  more,  sureties,  to  be  approved  by 
the  judge  of  the  court  of  which  he  is  clerk,  which  bond  shall  be  in 
such  penalty,  not  less  than  five  thousand  dollars  ($5,000),  as  may 
be  determined  by  such  judge,  payable  to  the  People  of  the  State  of 
Illinois,  and  conditioned  for  the  faithful  performance  of  the  duties 
of  his  office  and  to  pay  over  all  moneys  that  may  come  to  his  hands 
by  virtue  of  his  office  to  the  parties  entitled  thereto,  and  to  deliver 
up  to  his  successor  in  office  all  moneys,  papers,  books,  records  and 
other  things  appertaining  to  his  office  whole,  safe  and  undefaced, 
which  bond  shall  be  copied  at  large  upon  the  records  of  the  court 
and  then  filed  in  the  office  of  the  secretary  of  State,  upon  which 
such  clerk  shall  be  immediately  commissioned  by  the  governor  and 
enter  upon  the  duties  of  his  office. 

§  15.  Every  such  clerk  shall  attend  in  person  to  the  duties  of  his 
office  when  it  is  practicable  so  to  do,  and  perform  all  the  duties 
thereof  which  can  reasonably  be  performed  by  one  person;  Provid</l, 
however,  he  may,  when  necessary,  appoint  deputies,  who  shall  take 
the  same  oath  or  affirmation  as  is  required  of  the  principal  clerk, 
which  shall  be  entered  at  large  upon  the  records  of  the  court,  and 
the  principal  clerk  shall,  in  all  cases,  be  responsible  for  the  acts  or 
omissions  of  his  deputies. 

§  16.  Every  such  clerk  shall  attend  the  sessions  of  their  respec- 
tive courts,  issue  all  process  thereof,  preserve  all  the  files  and  papers 
thereof,  make,  keep  and  preserve  complete  records  of  all  the  pro- 
ceedings and  determinations  thereof,  and  do  and  perform  all  other 
duties  pertaining  to  their  said  offices  as  may  be  required  by  law  or 


PROBATE    COURTS.  XXI 


Act  of  1877. 


the  rules  and  orders  of  their  courts  respectively,  and  shall  enter  of 
record  all  judgments,  decrees  and  orders  of  their  respective  courts 
before  the  final  adjournment  of  the  respective  terms  thereof,  or  as 
soon  thereafter  as  practicable. 

§  17.  It  shall  be  the  duty  of  the  county  board  of  every  county  in 
which  there  shall  be  established  a  probate  court  in  pursuance  of 
this  act,  to  provide  the  clerk  thereof  with  all  necessary  blanks, 
books,  stationery,  pens  and  ink  for  their  respective  offices,  the  same 
to  be  paid  for  out  of  the  county  treasury,  and  in  case  such  supplies 
should  not  be  so  furnished,  then  the  clerk  of  such  court  shall  fur- 
nish the  same,  from  time  to  time,  as  may  be  necessary,  the  cost 
thereof  to  be  allowed  by  the  county  board  and  paid  out  of  the 
county  treasury. 

§  18.  The  necessary  rooms,  office  and  furniture,  the  proper  vaults 
or  other  safe  means  of  keeping  the  archives  of  their  respective 
offices  shall  be  provided  for  the  clerks  of  the  probate  courts,  in 
their  respective  counties,  by  the  county,  and  the  cost  thereof  paid 
out  of  the  county  treasury. 

§  19.  It  shall  be  the  duty  of  the  probate  clerk  to  deliver  over  to 
his  successor  in  office,  and  of  his  successor  to  demand  and  receive 
from  him,  all  the  books,  papers,  records,  and  other  things  appertain- 
ing to  his  office,  or  in  his  possession  by  virtue  of  his  office,  and 
should  he  refuse  or  neglect  to  do  so,  the  court  shall  have  power  to 
use  such  compulsory  process  and  take  such  measures  as  may  be 
necessary  to  compel  the  delivery  as  aforesaid,  according  to  the  true 
intent  and  meaning  hereof. 

§  20.  In  all  matters  concerning  the  probate  of  the  estates  of  de- 
ceased persons,  the  granting  of  letters  testamentary  or  of  adminis- 
tration, letters  of  guardianship,  the  manner  of  keeping  the  records 
of  said  court,  the  form  of  docket  entries,  journals,  fee  books,  memo- 
randums, the  form  of  process,  the  recording  of  papers  and  docu- 
ments connected  with  any  matter  of  which  said  court  has  juris- 
diction, the  clerk  of  said  court  shall  be  governed  by  and  follow  all 
laws  now  in  force,  or  which  may  hereafter  be  enacted,  concerning 
similar  matters  in  the  county  courts  of  the  State. 

§  21.  The  clerk  of  the  probate  court  shall  charge  and  collect  for 
each  official  act  the  same  fees  as  are  allowed  to  clerks  of  the  county 
courts  of  the  State  in  probate  matters,*  which  fees  shall  be  charged 

*  This  section  is  amended  by  act  of  May  29,  1879.  in  force  July  1,  1879,  by  which  act  a 
complete  schedule  of  fees  was  adopted.    See  Cothran's  Ann'd  Stats.,  1880,  p.  715, 
§  55a;  also  see  post,  chapter  Fees. 
D 


XX11  PROBATE   COURTS. 


Act  of  1877. 


in  accordance  with  the  laws  now  in  force  or  which  may  hereafter 
be  enacted  concerning  fees  and  salaries,  and  according  to  the  class 
to  which  the  county  belongs.  Such  clerk  shall  keep  full,  true  and 
correct  accounts  of  all  fees  collected  by  him,  and  report  the  same  in 
accordance  with  said  laws, for  the  keeping  of  which  accounts  no  fees 
shall  be  allowed  such  clerk,  and  the  same  shall  be  open  for  inspec- 
tion by  the  county  board,  in  accordance  with  said  laws,  and  all  fees 
iu  excess  of  the  compensation  allowed  to  such  clerk,  and  necessary 
clerk  hire  and  other  expenses,  shall  be  paid  into  the  county  treasury 
in  accordance  with  said  laws  concerning  fees  and  salaries. 

§  22.  Clerks  of  the  probate  court  shall  receive  such  compensation, 
or  salary,  as  shall  be  allowed  them  by  the  county  board,  together 
with  the  amount  of  their  necessary  clerk  hire,  stationery,  fuel  and 
other  expenses,  in  accordance  with  the  provisions  of  the  constitu- 
tion ;  Provided,  that  in  the  county  of  Cook  the  probate  clerk  shall 
receive,  aside  from  clerk  hire,  necessary  expenses  for  fuel  and 
stationery,  the  surn  of  three  thousand  dollars  ($3,000)  per  annum 
as  his  only  compensation,  to  be  paid  out  of  the  fees  of  his  office. 

§  23.  Probate  judges  shall  be  allowed  such  salary  as  shall  be  fixed 
by  their  respective  county  boards,  to  be  paid  out  of  the  county 
treasury. 

§  24.  When  a  vacancy  shall  occur  in  the  office  of  judge  of  the 
probate  court  of  any  county,  the  clerk  of  the  court  in  which  the  va- 
cancy exists  shall  notify  the  governor  of  such  vacancy.  If  the 
unexpired  term  of  the  office  made  vacant  is  less  than  one  year,  at  the 
time  the  vacancy  occurs,  the  governor  shall  fill  such  vacancy  by 
appointment;  but  if  the  unexpired  term  exceeds  one  year,  the 
governor  shall  issue  a  writ  of  election  as  in  other  cases  of  vacancy 
to  be  filled  by  election. 


PBOBATE 
JURISDICTION  AND   PRACTICE. 


CHAPTER  I. 

OF  THE   JURISDICTION   AND   PRACTICE   GENERALLY. 

SECTION  I.  Introduction. 

II.  County  courts  —  in  probate. 

SECTION   I.  —  INTRODUCTION. 

1.  Testate  and  intestate  estates. 

3.  The  probate  of  wills  and  execution  of  trusts  thereby  created,  adminis- 
tration of  intestate  estates,  guardians,  conservators,  etc. 

3.  Subdivision  and  scope  of  the  subject. 

4.  The  high  character  of  the  trusts  involved. 

5.  Care  requisite  in  the  development  of  the  subject. 

1.  TESTATE  AND  INTESTATE  ESTATES.    The  probate  jurisdiction 
pertains  to  testate  or  intestate  estates.     The  person  who  makes  a 
will  is  a  testator;  one  who  has  died  is  termed  a  decedent.     If  a 
decedent  leave  a  will,  he  dies  testate  ;  his  is  a  testate  estate.     The 
decedent  who  leaves  no  will  dies  intestate  and  his  is  an  intestate 
estate. 

2.  THE  PROBATE  OF  WILLS,  and  the  due  execution  of  the  trusts 
thereby  created,  and  the  administration  of  the  estates  of  intestates, 
embrace  the  entire  jurisdiction  proper,  in  probate.     But  the  care 
of  estates  of  the  insane,  the  inebriate  or  drunkard,  the  infant  and 
those  otherwise  incapacitated,  and  the  care  and  custody  of  their 
persons,  are  closely  allied  and  akin  to  the  conservation  of  the  estates 
of  deceased  persons  and,  too,  is  here  confined   to  the  county  or 
probate  judge. 

3.  Hence,  in  the  DEVELOPMENT  OF  OUR  SUBJECT,  we  propose  to 
treat  of : 

I.  The  jurisdiction  and  practice  generally. 
II.  The  probate  of  wills  and  the  execution  of  the  trusts  thereby  created, 

or  the  proper  administration  of  testate  estates. 
HI.  The  proper  administration  of  intestate  estates. 
IV.  The  proper  care  and  custody  of  the  persons  and  the  conservation  of 
the  estates  of  the  incapacitated. 


OF  THE   JURISDICTION  [CH.  I. 


Introduction. 


V.  The  relation  of  guardian  and  ward. 
VI.  The  disposition  of  personal  property : 
I.  By  executors. 
II.  By  administrators. 

III.  By  conservators. 

IV.  By  guardians. 

VII.  The  disposition  of  real  property. 
I.  By  executors. 
II.  By  administrators. 

III.  By  conservators. 

IV.  By  guardians. 

VIII.  The  payment  of  expenses,  allowances,  debts  and  legacies. 

IX.  The  settlement  of  accounts. 
X.  The  law  of  descent  or  inheritance. 

XI.  Costs  and  fees. 

XII.  Appeals. 
XIII.  Miscellaneous  matters. 

Naturally,  divided  thus  into  general  subdivisions,  it  is  our  purpose 
to  display  the  subject-matter  of  this  treatise,  through  the  several 
chapters,  subdividing  each  into  a  convenient  number  of  sections, 
interspersing  throughout  the  work  the  approved  forms  and  pre- 
cedents, supporting  the  whole  by  notes  and  references  to  the  statutes 
and  adjudications  of  the  courts. 

4.    THE   HIGH   CHARACTER   OF  THE   TRUSTS   INVOLVED.      "We  shall 

endeavor  to  adapt  our  work  to  the  intelligence  of  those  who  are 
called  upon  to  discharge  the  high  trusts  involved,  and,  at  the  same 
time,  furnish  the  practitioner  as  well  as.  the  courts,  in  as  concise 
form  as  possible,  an  exposition  of  the  entire  course  of  procedure  in 
the  several  branches  of  our  subject,  which  we  have  above  suggested. 

The  trust  relations  here  created  are  of  the  highest  character  known 
to  the  law,  and  demand  the  unceasing  vigilance  of  the  courts  in 
order  to  preserve  the  property  of  those  whom  the  law  through  this 
jurisdiction  seeks  to  protect. 

Eecent  statutes,  carefully  drawn  and  systematically  arranged,  aid 
materially  in  the  work  before  us,  and  furnish,  almost  without  com- 
ment, plain  and  concise  rules  of  procedure.  But  the  decisions  of 
the  courts  showing  the  development  of  these  statutes  are  necessary 
to  a  clear  and  full  exposition  of  the  law.  To  know  what  the  law 
is  we  must  know  its  history.  Therefore,  hand  in  hand  with  the 
statutes,  we  shall  endeavor  to  give  these  decisions  in  substance  as 
they  are  to  be  found  in  the  Illinois  Reports. 


CH.   I.]  AND    PRACTICE   GENERALLY. 


Introduction. 


5.  CARE  REQUISITE  IN  DEVELOPING  SUCH  A  SUBJECT.  Great 
care  is  necessary  iii  developing  such  a  subject.  The  elaborate  dis- 
cussions to  be  found,  however,  in  these  reports,  bearing  directly 
upon  the  questions  involved,  when  properly  applied,  will  furnish 
the  best  guide  in  matters  where  good  counsel  is  so  often  needed. 


SECTION   II. —  COUNTY    AND    PROBATE   COURTS.* 

1.  They  are  courts  of  record. 

2.  They  have  general  jurisdiction  in  probate. 

3.  Their  judgments,  final  and  conclusive,  unless  reversed. 

4.  Constitutional  and  statutory  provisions. 

5.  Constitution  of  1818. 

(1)  Courts  of  probate  created  in  1821. 

(2)  Probate  court  in  1845. 

G.  Constitution  of  1848;  county  courts  from  1849. 

7.  Constitution  of  1870;  original  jurisdiction  given  to  the  county  and  pro- 

bate courts. 

8.  This  j  urisdiction  involves  sacred  trusts. 

9.  R.  S.  1874,  p.  339. 

10.  Terms  for  probate  business. 

11.  County  clerk, 

12.  The  judgments,  orders  and  decrees  in  probate,  not  to  be  collaterally 

attacked ;  the  rule  in  the  United  States  supreme  court. 

13.  Decisions  in  Illinois. 

(1)  Incidental  powers;  no  discretion  in  prescribed  cases;  exclusive 

jurisdiction  over  personalty^  none  over  realty  ;  but  see  R.  S. 
1874,  p.  121. 

(2)  Rules  of  practice. 

14.  Equitable  jurisdiction  over  claims  against  intestate  estates. 

15.  {Statutory  provisions. 

16.  Scope  of  the  subject. 

17.  Deceased  persons,  either  testates  or  intestates;  testate  estates:  intes- 

tate estates. 

18.  Incapacitated  persons  —  persons  not  sui  juris,  etc. 

ID.  Executors,  administrators,  guardians,  conservators,  all   officers  of  the 
court. 

20.  The  law  of  descent. 

21.  Appeals. 

22.  Method  characteristic  of  the  subject. 

*  The  act  of  March  26, 1874,  in  force  July  1, 1874,  "  to  extend  the  jurisdiction  of  county 
courts,"  etc.,  and  "An  act  to  establish  probate  courts  in  all  counties  having  a  popula- 
tion of  100,000  or  more,"  etc.,  passed  April  27,  in  force  July  1, 1877,  with  some  subse- 
quent amendments,  contain  a  revision  of  all  laws  in  relation  to  jurisdiction  of  these 
courts.  These  are  re-printed  (amendments  to  July  1, 1879),  ante,  pp.  siii  etseq.  See 
Cothran's  Ann'd  Stats.,  1880,  pp.  416  ctseq. 


4  OF   THE   JURISDICTION  [CH.  I. 

County  Courts. 

1.  COUNTY  AND  PROBATE  COURTS  ARE  COURTS  OF    RECORD.  («) 

2.  They  have  GENERAL  JURISDICTION  over  a  particular  class  of 
cases.     It  is  a  limited  but  not  au  inferior  jurisdiction. (5)     When 
these  courts  adjudicate  upon  the  matters  over  which  they  have  gen- 
eral jurisdiction,  as  the  administration  of  estates,  as  liberal  intend- 
ments  will  be  indulged  in  their  favor  as  to  proceedings  of  circuit 
courts.(c) 

3.  THEIR  JUDGMENTS  are  final  and  conclusive  as  to  all  matters 
within  their  jurisdiction  and  their  decrees,  within  the  sphere  of 
probate  jurisdiction  cannot  be  collaterally  attacked,  except  for  want 
of  jurisdiction,  (d)    Among  these  are  included  all  the  judicial  powers 
which,  prior  to  the  act  of  February  12,  1849(e),  in  this  State  hud 
been  vested  in  probate  courts  and  probate  justices  of  the  peace,  the 
judicial  officers  of  such  courts,  as  they  were  for  a  time  styled.  (/) 

4.  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS.     To  arrive  at 
a  clear  understanding  of  the  subject,  it  will  be  necessary  to  examine 
the  constitutional  and  statutory  provisions,  relating  to  this  juris- 
diction, which  have,  heretofore,  existed  in  Illinois,  and  which,  to  a 
great  extent,  yet  remain  in  force  under  the  constitution  of  1870. 

5.  CONSTITUTION   OF  1818.      This  constitution    ordained  that, 
"  the  judicial  power  of  this  State  shall  be  vested  in  one  supreme 
court,  and  such  inferior  courts  as  the  general  assembly  shall,  from 
time  to  time,  ordain  and  estabrish."(<jr) 

(1)  COURTS  OF  PROBATE.     Under  this  limitation   of  power  ( h) 
the  act  of  February  10,  1821,  was  passed  to  establish  courts  of  pro- 
bate and  the  manner  of  proceeding  therein,  (i) 

(2)  PROBATE   COURT.     To  this  act  several  amendments  of  no 
present  practical  iuportance  were  made(y),  from  time  to  time,  until 
the  general  revision   of  1845(&),  in  which  ^the  PROBATE  COURT  was 
provided  for.(Z) 

6.  CONSTITUTION    OF    1848.    The  experience  of    thirty  years, 

(a)  Ante,  pp.  xiii  el  seq.  (j)  Act,   February     12,   1823,   Laws 

(b)  Propst  v.  Meadows,  13  111.  157.  1823,  p.  132  ;    Act,  January   12,  1825, 

(c)  Moffitt    v.    Moffitt,  69   111.   641 ;  Laws   1825,  p.  87 ;  see   Laws  1829,  p. 
Bostwick  v.  Skinner,  80  id.  147.  37  ;    R.    S.    1833,   145  ;   1  Laws   1837. 

(d)  Moffitt  v.  Moffitt,  69  111.  641.  176  ;  2  Laws  1837,  46  ;    Laws  1839,  p. 

(e)  Laws  1S49,  p.  62.  39 ;  Act,  February  1, 1843,   Laws  184:], 
(/)  R.  S.  1845,  ch.  85 ;  Banna  v.  To-    p.  185. 

cum,  17   111.  387 ;  Doe  v.  Hileman,  1  (k)  See  Gross'  Index  to  Laws  p.  27, 

Scain.  323.  c.  Ixxxv,  R.  S.  1845. 

(g)  Const.,  1818,  Art.  iv,  §  1.  (£)  R.  S.  1845,  pp.  42G-429,  appendix 

(h)  The  People  v.  Wilson,  15  111.  388.  Nos.  21,  22. 

(i)  Laws  1821,  #.  11.9;   2  Gilm.  657. 


CH.   I.]  AND   PRACTICE    GENERALLY.  5 

In  probate. 

undoubtedly,  taught  the  sovereign  people  oi'  Illinois  the  necessity 
of  a  more  systematic  organization  in  which  to  center  such  a  juris- 
diction. Hence(w),  the  COUNTY  COURT  was  provided  for  with  one 
judge  to  be  elected  for  a  term  of  four  years  in  each  county,  and 
*clothed  inter  alia  "with  all  probate  and  such  other  jurisdiction  as 
the  general  assembly  may  confer  in  civil  cases." 

But  "  the  county  commissioner's  courts  and  the  probate  justices 
of  the  several  counties  were  continued  "  until  the  general  assembly 
acted.(w)  According  to  the  early  decisions  of  the  supreme  court  (0) 
it  seems  that  the  first  three  sections  of  ch.  85  ( p)  were  superseded 
by  the  act  of  February  12, 1849,  the  county  judges  taking  the  juris- 
diction and  place  of  probate  justices  of  the  peace,  under  the  then 
new  constitution. (</) 

7.  CONSTITUTIONAL  PROVISIONS.    The  constitution  of  1870  (r) 
confers  upon  county  courts,  for  which  it  provides  "original  juris- 
diction in  all  matters  of  probate,  settlement  of  estates  of  deceased 
persons,  appointment  of  guardians  and .  conservators,   and  settle- 
ments of  their  accounts,  in  all  matters  relating  to  apprentices,"  etc. 
The  same  instrument  provides  as  to  probate  courts,  as  follows : 
"  The  general  assembly  may  provide  for  the  establishment  of  a  pro- 
bate court  in  each  county  having  a  population  of  over  50,000,  and 
for  the  election  of  a  judge  thereof,  whose  term  of  office  shall  be  the 
same  as  that  of  the  county  judge,  and  who  shall  be  elected  at  the 
same  time  and  in  the  same  manner.     Said  coiirts,  when  established, 
shall  have  original  jurisdiction  of  all  probate  matters,  the  settlement 
of  estates  of  deceased  persons,  the  appointment  of  guardians  and 
conservators  and  settlement  of  their  accounts,  in  all  matters   rela- 
ting to  apprentices;  and,  in  cases  of  the  sales  of  real  estate  of  de- 
ceased persons  for  the  payment  of  debts. (s) 

8.  THIS  JURISDICTION  and  the  practice  pertaining  to  it;  involve 
the  sacred  trusts   over   which  the   court  of  chancery  exercises  its 
protecting  power(^),  and  which  are  of  paramount  importance   in 
the  administration  of  justice  and  the  regulation   of  private  affairs. 
These  trusts  are  reposed  in  the  county  or  probate  courts,  as  the 

(m)  In  Art.  v,  §  16-19.  4-21,  appendix,  Nos.  21,  22  ;    R.  Laws 

(n)  See  §  6,  Schedule,  Const.  1848;  1833,  Scales'  Comp.,  p.  656,  §  1. 

Laws  1849,  p.  62  ;  1  Gross'  Comp.  526.  (r)  Art.  vi,  8  18. 

(o)  Hanna  v.  Yocum,  17  111.  387.  (*)  Const.  1870,  Art.  6,  §  20. 

(p)  P.  426,  R.  S.  1845.  (t)  See  HILL'S  CH.  PR.,    Trusts,  431, 

(q)  Const.   1848,   Art.   v,  g§  16-20  :  432  ;  Freeland  v.  Dazey,  25  111.  294. 

schedule,  §  6  ;    R.    S.   1845,  p.  426,  §§ 


6  OF   THE   JURISDICTION  [CH.  I. 

County  Courts. 

case  may  be,  in  this  State  as  to  courts  not  of  inferior  but  of  special 
and  original  jurisdiction,  superior  within  their  appropriate  sphere 
of  action.  They  have  no  modes  of  procedure  of  practice,  however, 
excepting  such  as  are  derived  from  the  statutes  of  their  creation,  (u)^ 

9.  The  revision  of  the  statutes  of  1874,  with  some  few  amend- 
ments,  contains  the  existing  law  as  respects  the  jurisdiction  in 
prpbate  matters  conferred  upon  county  courts.     The  act  of  April 
25,  1877,  contains  the  same  in  regard  to  probate  courts;  both  acts 
considered  together  prescribe  the  process,  practice  and  pleadings  in 
these  courts.    To  these  we  shall  refer  in  dealing  with  our  subject(v) 

10.  TERMS  for  probate  business  are  held  on  the  third  Monday  of 
every  month,  except  as  changed  by  statute.(w) 

11.  CLERKS.     Being  courts  of  record,  both  county  and  probate 
courts  have  clerks.     The  county  clerk  acts  in  the  former.     In  the 
latter  the  position  is  filled  by  an  officer  thereto  elected,  (x) 

12.  DECREES,  ETC.,  IN  COLLATERAL  ACTION  OR  SUIT.    It  has,  in 
some  of  the  States,  been  held  that  the  orders  and  decrees  of  judges 
of  probate  and  of  county  judges  in  probate  proceedings,  are  not  like 
judgments  of  the  common-law  courts,  conclusive  until  reversed;  but 
they  may  be  attacked  in  collateral  suits  or  proceedings.     This,  how- 
ever, has  been  greatly  limited  as  a  general  doctrine,  either  by  statute 
or  adjudication.     The  leading  case  on  this  subject,  and  the  firm 
ground  taken  by   the  supreme  judicial  tribunal  of  the  nation  in 
upholding  the  proceedings  of  such  courts,  and  recognizing  them  as 
having  original  jurisdiction  of  all  matters  confided  to  them,  may  be 
taken  as  perhaps  the  best  exposition  of  their  power  and  jurisdiction, 
and  the  extent  to  which  their  orders,  judgments  or  decrees  may  be 
collaterally  questioned.     The  rule  of  the  U.  S.  supreme  court  is: 

Upon  a  proceeding  in  personam,  where  there  are  adverse  parties, 
the  jurisdiction  of  the  court  depends  upon  its  power  over  the  subject- 
matter  and  the  parties  ;  where  the  proceeding  is  in  rem,*  the 

(u)  Piggott  v.   Ramey,  1  Scam.  145  ;  (v)  See  p.  xiii,  supra. 

Marston  \.  Wilcox,  id.  60  ;  Ferguson  v.  (w)  Id. 

Hunter,  2  Gilm.  657  ;  Moody  v.  Moody,  (x)  Act  April  27,  1877,  §  13,  ante,  p. 

11  Me.  247;    Fairfield  v.    Gulliver,  49  xxiv  ;   Cothrau's  Ann.  R.  Stat.,p.  426. 
id.  360;    School  Jnsp.  v.  People,  20  111. 
525  ;  Chicago  v.  Colby,  id.  614. 

*  No  case  has  received  severer  criticism  than  that  of  Orignon  v.  Astor,  but  the  U.  S. 
supreme  court  adheres  tenaciously  to  it.  Comstock  v.  Crawford,  3  Wall.  396;  2  Hill's  C. 
L.  645.  The  cases  in  Illinois  do  not  seem  to  conflict,  for  the  reason  that,  as  says  Mr. 
Justice  SCOTT,  "The  proceedings  under  our  statute  to  sell  the  real  estate  of  an  intes- 
tate to  pay  debts  Is  not  purely  a  proceeding  ire  rem.  Parties  in  interest  are  necessary 
thereto  by  the  positive  provisions  of  the  law."  Botsford  v.  0' Conner,  57  111.  72.  See 
chapter  vii,  infra. 


CH.   I.]  AND   PRACTICE   GENERALLY.  7 

In  probate. 

jurisdiction  of  the  court  depends  upon  its  power  over  the  thing, 
the  subject-matter  before  them,  without  regard  to  the  persons  who 
may  have  an  interest  in  it ;  all  the  Avorld  are  parties.  Of  this  nature 
is  a  proceeding  before  a  competent  court  to  sell  the  real  estate  of  an 
indebted  intestate;  the  administrator  represents  the  land,  all  persons 
claiming  under  the  intestate  are  parties,  the  action  of  the  court 
operates  on  the  estate,  not  on  the  heirs  of  the  intestate,  and  the 
purchaser  obtains  not  their  title  but  one  paramount.(y) 

13.  THE  RULE  IN  ILLINOIS.  It  was  early  decided  in  Illinois: 
(1)  That  courts  exercising  probate  jurisdiction,  generally,  may 
exercise  all  powers  necessary  to  the  enforcement  of  their  judgments 
within  the  scope  of  that  jurisdiction,  and  may  exercise,  as  an  inci- 
dent of  the  power  granted,  such  other  powers  as  are  necessary  to 
the  execution  of  that  which  is  specifically  granted.  Thus,  these 
courts  have  power  to  revoke  letters  of  administration  obtained 
through  fraud;  the  right  to  inquke  of  the  fraud  is  necessarily  inci- 
dental to  the  power  given  by  statute,  to  hear  and  determine  the 
right  of  administration  ;(z)  but  the  legislature  having  directed 
these  courts  as  to  the  mode  of  their  procedure,  they  must  proceed 
conformably  to  the  mode  prescribed.  Such  a  court  could  render 
no  judgment  in  favor  of  heirs  or  devisees  against  an  executor  or 
administrator,  for  failing  or  refusing  to  pay  over  to  such  heirs  or 
devisees  their  distributive  shares  of  the  estate  of  the  deceased. 
The  remedy  would  be  by  attachment  for  contempt,  (a)  As  courts 
of  general  and  original  jurisdiction  in  probate  matters,  they  are 
not  inferior  courts  in  the  language  of  the  common  law,  but  they 
are  courts  of  limited  or  special  jurisdiction,  having  cognizance  only 
of  matters  specially  circumstanced.  Their  record  setting  forth  the 
facts  or  circumstances  which  give  jurisdiction,  and  in  that  regard 
leaving  nothing  to  be  inferred  and  containing  nothing  to  raise  a 
doubt  upon  that  subject,  then  they  are  not  to  be  regarded  as  infe- 
rior courts.  The  character  of  the  court  and  its  right  to  proceed 
to  act,  the  subject-matter  of  the  record  being  exemplified,  its 
decrees,  in  a  collateral  proceeding,  cannot  be  attacked.  The  juris- 
diction only  is  subject  to  attack  collaterally  ;  mere  errors  can  only 
be  urged  in  a  direct  proceeding  to  reverse. 

(y)  Grignon  v.   Astor,  2  How.  319 ;  43  id.  348 ;    Botsford  v.   O'Conner,  57 

Banna  v.  Yocum,    17  111.  387 ;  see  1  id.  72. 

Hill's  C.  L.  42-56  ;    The  Tug  Moniauk        (z)  Marston  v.  Wilcox,  1  Scam.  60. 
Y.  Walker,  47  111.  336  ;  Hurd  v  Slaten,        (a)  Piggott  v.  Ramey,  1  Scam.  145. 


8  OF  THE   JURISDICTION  [CH.  I. 

County  Courts. 

These  courts  have  exclusive  jurisdiction  over  the  personalty.(J) 
As  to  the  realty  their  jurisdiction  is  limited,  iii  the- case  of  county 
courts  by  the  statute  of  March  26,  1874,  to  "  proceedings  by  execu- 
tors, administrators,  guardians  and  conservators  for  the  sale  of  real 
estate  for  the  purposes  authorized  by  law,"  and,  in  the  case  of  pro- 
bate courts,  by  the  constitution  of  1870,  to  "cases  of  the  sales 
of  real  estate  of  deceased  persons  for  the  payment  of  debts." 

(2)  They  may  establish  RULES  OF  PRACTICE  (c)  which  should, 
when  made,  be  placed  upon  their  records;  such  rules  cannot  rest  in 
parol,  they  should  have  reasonable  publicity  and  not  operate  retro- 
spectively, (d) 

14.  They  have  a  sort  of  EQUITABLE  JURISDICTION  over  claims 
presented  for  allowance,  (e) 

The  constitution  of  1870,  giving  original  jurisdiction  to  the 
county  and  probate  courts,  where  authorized  to  be  established,  in 
probate  and  other  matters,  they  may  be  considered  in  Illinois  as 
standing,  so  far  as  relates  to  the  force  and  effect  of  their  adjudica- 
tions in  such  matters  on  an  equal  footing  with  circuit  courts,  to 
the  full  extent  of  their  special  jurisdiction,  as  shown  above. (/) 

15.  THE  STATUTORY  PROVISIONS.     The  statutes  concerning  ad- 
ministration of  estates;  adoption  of  children;  apprentices;  descent; 
dower;  lunatics,  idiots,  drunkards  and  spendthrifts;  guardian  and 
ward  and  wills,  provide  the  mode  of  practice  and  procedure  which 
will  be  considered  in  order. 

16.  SCOPE  OF  THE  SUBJECT.    As  the  end  and  scope  of  the  juris- 
diction, now   in  review  before  us,  is  the  proper  administration  not 
only  of  the  estates  of  the  deceased,  but  also  of  the  estates  of  the 
incapacitated,  it  seems  necessary,  in  order  to  an  easy  and  natural 
arrangement  of  our  subject,  that  we  should  consider  the  procedure 
and  practice  of   the  county  courts,  the  means  to  this  end,  and 
classify  them,  with  reference  to  the  persons  whose  estates  thus 
become  the  subject-matter  for  judicial  action. 

17.  DECEASED  PERSONS  in  probate  are  divided  into  two  classes: 
(1)  Those  who  make  wills  and,  therefore,  die  testate,  and  leave, 

for  probate  jurisdiction,  testate  estates. 

(6)  But  see  act  of  February  12,  1849,  (/)  Botsford  v.  <?  Conner,  57  111.  72; 

Gross,  526,  527 ;  Ferguson  v.  Hunter,  Hanna  v.  Tocum,  17  id.  387 ;  Clark  v. 

2  Gilm.  657.  Thompson,  47  id.  25 ;  Willoughby  v. 

(e)  Holloway  v.  Freeman,  22  111.  197.  Dewey,  54  id.  26;  see  1  Hill's  Com. 

(d)  Owens  v.  Ranstead,  22  111.  161.  Law,  40-56 ;  2  id.  645. 

(«)  Hurd  v.  Slaten,  43  111.  348. 


CH.  I.]  AND    PRACTICE    GENERALLY.  9 

In  probate. 

(2)  Those  who  make  no  wills  and,  therefore,  die  intestate,  and 
leave,  for  such  jurisdiction,  intestate  estates. 

18.  INCAPACITATED  PERSONS,  whose  property  is  subjected  to  the 
jurisdiction,  may  also  be  divided  into  two  classes: 

(1)  Infants. 

(2)  Other  incapacitated  persons. 

Hence,  the  subject-matter  of  this  jurisdiction  divides  naturally 
into  1.  Testate  estates;  2.  Intestate  estates;  3.  Estates  of  infants; 
•4.  Estates  of  the  insane  and  other  incapacitated  persons. 

19.  EXECUTORS,  ETC.,  OFFICERS  OF  THE  COURT.    All  these  estates 
are  made  up  of  the  two  classes  of  property  known  to  the  law  as  per- 
sonal and  real,  to  which  appertain  as  distinguishing  characteristics 
different  rules  of  enjoyment  and  disposition.     Testate  estates  are 
managed  by  and  through  executors,  the  appointees  of  their  testators; 
intestate  estates  through  administrators;  estates  of  infants  through 
guardians  and   the  estates   of  the  incapacitated  persons  through 
conservators,  all  appointees  and  officers  of  the  court,  subject  to  its 
process,  orders  and  decrees,  and  liable  to  account  when  required 
not  only  to  the  court  but  to  those  interested  as  cestuu  que  trust  in 
these  estates.     The  funds  in  hand  are  to  be  disposed  of  in  the  pay- 
ment of  expenses,  allowances,  debts,  legacies,  etc. 

20.  THE  LAW  OP  DESCENT.     In  the  distribution  of  these  estates 
finally,  the  law  of  descent  furnishes  well-defined  rules.     Costs  and 
fees  accrue  in  the  proceedings. 

21.  APPEALS  are  provided  for.     There  are  other  matters  pertain- 
ing to  the  jurisdiction  which  it  will  be  necessary  to  incidentally  con- 
sider.    We  shall  close  the  volume  with  the  inevitable  appendix  con- 
taining, among  other  things,  the  concise  and  excellent  rules  of  the 
probate  court  of  Cook  county,  with  forms,  etc. 

22.  METHOD.     By  thus  subjecting  the   matters  before    us  to 
methodical  arrangement  under  the  rules  of  analysis,  we  are  pre- 
pared to  discuss  with  greater  satisfaction  the  important  details  and 
admire  the  system  and  harmony  which  pervade  the  procedure  and 
practice  in  such  matters.     The  highest  trusts  known  to  the  law 
pertain  to  testate  estates,  therefoi-e,  we  purpose  to  consider  them 
first,  which  brings  us  to  another  chapter. 

2 


10  TESTATE   ESTATES.  [CH.  II. 

Wills. 

CHAPTER  II. 

TESTATE   ESTATES. 
WILLS,  THEIR   PROBATE   AND   THEIR   EXECUTION. 

SECTION  I.  Wills. 

II.  Probate  of  wills. 
III.  Executors. 


SECTION   I. — WILLS. 

1.  Definition.  6.  Forms. 

2.  Who  may  make  a  will.  (1)  Of  a  will. 

3.  Requisites  of  a  will.  (2)  Of  a  codicil. 

4.  Nuncupative  will.  (3)  Of  a  nuncupative  will. 

5.  Codicils.  7.  Revocation. 

8.  Production  of  the  will. 

9.  Construction  of  wills. 

1.  DEFINITION.    A  WILL  is   the  legal   declaration  of  a  man's 
intention  respecting  the  manner  in  which  he  would  have  his  prop- 
erty, or  estate,  disposed  of  after  his  death.     The  terms  will  and 
testament  are  synonymous.     When  the  will  operates  upon  personal 
property,  it  is  called  a  testament  j  when  upon  real  estate,  a  devise. (a) 
The  more  general  and  popular  denomination  of  the  instrument, 
embracing  equally  real  and  personal  estate,  is  that  of  last  will  and 
testament. 

2.  ALL  NATURAL  PERSONS,  unless   restricted   or   incapacitated 
may  transmit  their  property  to  posterity  by  will.     There  are  two 
causes  which  prevent  a  person  from  the  valid  execution  of  such  an 
instrument. 

1.  Want  of  mind;  2.  Inability  by  reason  of  want  of  age. 

In  this  State  the  power  of  a  testator  of  sound  mind  to  dispose  of 
his  estate  is  unlimited,  both  as  to  person  and  object,  unless,  indeed, 
there  be  excepted  the  person  of  a  witness  to  the  instrument  and  its 
execution.  Any  person  subscribing  as  a  witness  and  all  claiming 
under  him  are  debarred  from  taking  under  the  provisions  of  the 
will  he  has  so  subscribed.  As  to  him,  all  devises,  legacies  and 

(a)  4  Kent's  Com.  500 ;  Bouv.  L.  D.,  Witt. 


CH.  II.]  TESTATE   ESTATES.  11 


Wills. 


interests  are  void  unless  there  be  joined  with  him  at  least  two  other 
credible  and  competent  witnesses.  Nevertheless,  if  such  witness 
would  have  been  entitled  to  any  share  of  testator's  estate,  were  the 
will  not  existing  or  established,  he  will  be  entitled  to  that  propor- 
tion of  the  estate  he  \vould  have  received  from  an  intestate  estate, 
to  the  extent  it  does  not  exceed  the  special  devise  or  bequest  made 
to  him  by  the  will;  (b)  he  may  pass  by  his  own  children,  and  he 
may  prescribe  the  time  and  mode  in  which  the  bounty  shall  be 
enjoyed,  provided  he  therein  contravenes  no  principle  of  public 
policy  or  rule  of  right.  (6-)  Every  person  aged  twenty-one  years,  if 
a  male,  or  eighteen,  if  a  female,  being  of  sound  mind  and  memory, 
shall  have  power  to  devise  real  estate,  or  any  interest  they  may  have 
in  the  same,  and  to  dispose  of  personal  estate  of  every  description  by 
wilL(rf) 

The  law  in  force  at  the  time  of  the  death  of  the  testator  or  intes- 
tate controls  his  estate,  but  the  will,  though  legally  executed  by  a 
competent  person,  is  wholly  inoperative  to  convey  title  and  for  most 
other  purposes  till  it  has  been  probated. (e) 

3.  THE  INDISPENSABLE  REQUISITES  OF  A  WILL  are,  that  it  must 
be  signed  by  the  testator  or  by  some  one  for  him  and  in  his  name, 
in  his  presence  and  by  his  direction,  and  be  attested  in  his  presence 
by  two  or  more  witnesses.  (/) 

4.  NUNCUPATIVE  WILL.     This  is  a  will  or  testament  orally  made 
or  declared  before   witnesses  and  afterward  reduced   to   writing. 
Nuncupative  wills  have  been  abolished  in  England  by  statute  1 
Viet.  ch.  26,  §  9,  with  an  exception  in  the  case  of  soldiers  in  actual 
military  service,  and  mariners  and  seamen  at  sea.    This  is  so,  too, 
in  several  of  the  States  of  the  Union .     The  statute  of  wills  of  the 
State  of  Illinois  recognizes  such  wills,  declaring  they  shall  be  good 
and  available  in  law  for  the  conveyance  of  personal  property,  if 
committed  to  writing  within  twenty  days  after  the  making  thereof, 
and  proven  before  the  court  of  probate  by  two  or  more  credible, 
disinterested   witnesses,   who  were   present  at   the  speaking  and 
publishing  thereof.     They  must  testify   that   they  were  present, 

(6)  Coth.   Ann'd.   Rev.   Stats.,  1880,  married  women  ;  Hill's  Chan.  Pr.  433, 

1537,  §  8.  610;  Trish  v.  Newell,  62  111.  196. 

(c)  Rhoad*  v.   Rhoads,   43  111.239;  (e)  Paschcdl  v.  Hailmam,  4  Gilm.  285, 
Heuser  v.  Harris,  42  id.  425.  Hill's  Chan.  Pr.  56-70. 

(d)  4  Kent's  Com.  502 ;  R.  S.  1874,  ch.  (/)  Eigg  v.  Wilton,  13  111.  15  ;  R.  S. 
148,  §  1,  p.  1104;   Laws   1872,  Myers'  1874, p.  1101;  Flin  v.  Owen,  58  111.111; 
ed.,  p.  131;  Act   of   1861,    relating  to  Coth.  Ann'd.  Stats.,  1534 


12  TESTATE    ESTATES.  [CH.   II. 


Wills. 


heard  the  testator  pronounce  the  words,  believed  him  to  be  of  sound 
mind  and  memory,  that  testator  desired  those  present  to  bear  wit- 
ness such  was  his  will,  and  that  at  the  time  testator  was  in  his  last 
sickness.  Other  two  witnesses,  equally  disinterested,  must  prove 
such  will  was  committed  to  writing  within  ten  days  of  the 
death  of  testator.  The  court  must  also  be  satisfied  there  existed  no 
fraud,  compulsion  or  other  improper  conduct  operating  on  testator. 

The  supreme  court  of  Illinois  has  seemed  somewhat  to  change  its 
opinion  in  relation  to  these  statutory  requirements  of  a  nuncupa- 
tive will.  In  the  case  of  Weir  v.  Chidester,  63  111.  453,  it  held  that 
a  substantial  but  not  a  literal  compliance  with  the  statute  is 
required.  That  it  was  only  necessary  words  should  be  used  express- 
ing a  clear  intention  to  give  the  estate  to  a  certain  person  ;  that 
any  form  of  expression  which  would  indicate  to  those  present  that 
testator  desired  them,  or  some  of  them,  to  bear  witness  to  his  dis- 
position of  his  property,  would  be  sufficient.  In  Morgan  v.  Stevens, 
78  111.  287,  the  same  court  required  the  strictest  compliance  with 
the  statute.  In  this  case,  however,  it  appeared  that  the  alleged 
testator  lived  during  some  six  days,  being  all  the  time  in  condition 
to  make  a  written  will.  It  did,  however,  state,  as  a  general  propo- 
sition, that  the  provisions  of  the  statute  must  have  a  rigid  and 
strict  construction  and  must  be  strictly  enforced  by  the  courts. 
Later,  in  Herrington  v.  Stees,  82  111.  50,  this  was  so  far  modified 
as  to  hold  that  if  a  person  in  a  sickness  from  which  he  afterward 
died,  being  impressed  with  the  probability  of  approaching  death, 
deliberately  made  his  will  according  to  the  statute,  it  was  not  to  be 
rejected,  because,  as  a  fact,  he  may  have  had  time  to  reduce  it  to 
writing,  as  well  as  that  no  formal  request  of  the  testator  to  the 
attesting  witnesses  is  required  ;  that  it  is  sufficient  if  his  desire  was 
clearly  manifested  that  they  bear  witness  to  the  same. 

5.  A  CODICIL  is  an  addition  or  supplement  to  a  will,  and  is  a  part 
of  it,  the  two  making  but  one  instrument ;  it  must  be  executed  with 
the  same  solemnities  as  a  will.  Its  office  is  to  explain  the  disposi- 
tions made  by  the  will,  to  add  to  or  alter  it. 

There  may  be  more  than  one  codicil  to  a  will. 

A  NUNCUPATIVE  WILL,  EEDUCED  TO  WRITING. 

The  following  is  the  will  of  A  B,  mariner,  soldier  (as  the  case 
may  be),  of  ,  who  being  sick,  and  nigh  unto  death,  which 
occurred  the  day  following  at  6  o'clock,  A.  M.,  the  same  was  made  by 


CH.  II.]  TESTATE    ESTATES.  13 

Wills. 

the  said  A  B,  in  the  presence  of  the  persons  whose  names  are 
hereto  subscribed,  and  who  were  specially  requested  by  the  said  tes- 
tator to  take  notice  of  the  same  as  witnesses,  and  was  in  these 
words  : 

I  give  my  watch  to  A  B,  my  silver  spoons  to  C  D  (detailing  each 
particular]  .  All  the  rest  I  give  to  my  wife,  and  she  will  carry  this 
out.  She  shall  be  the  executrix. 

Done  in  the  sick  chamber  of  said  A  B,  on  18      , 

at  9  o'clock,  P.  31. 

AB,  ) 

C  D,  [•  Witnesses. 


7.  REVOCATION  OF  A  AVILL.  No  will,  testament  or  codicil  shall 
be  revoked  otherwise  than  by  burning,  canceling,  tearing  or  obliter- 
ating the  same  by  the  testator  himself,  or  in  his  presence,  by  his 
direction  and  consent,  or  by  some  other  will,  testament,  or  codicil,  in 
writing,  declaring  the  same,  sighed  by  the  testator  in  the  presence 
of  two  witnesses,  and  by  them  attested  in  his  presence.  No  words 
spoken  will  avail  to  revoke  or  annul  any  will,  testament,  devise  or 
codicil  in  writing,  executed  in  accordance  with  law.  By  statute 
of  April  9,  1872,  in  force  July  1,  1872,  (g]  it  is  expressly  enacted  that 
a  marriage  shall  be  deemed  a  revocation  of  a  prior  will  ;  that  is 
to  say,  this  statute  applies  to  marriages  which  have  taken  or  shall 
take  place  after  the  date  of  the  act,  and  not  to  such  as  have  been 
had  prior  to  its  passage.  (Jt) 

Unless  a  will  or  codicil  be  revoked  in  some  one  of  these  modes,  it 
continues  operative.  The  intention  to  revoke  must  be  made  appa- 
rent, in  the  manner  provided  by  the  statute.  If  a  will  is  burned, 
canceled,  torn  or  obliterated  by  accident,  it  is  not  thereby  revoked, 
for  its  contents  in  such  case  may  be  proved,  (i)  The  revocation  is 
the  voluntary,  intelligent  act  of  the  person  making  the  will. 

By  the  English  law,  if  a  child  of  the  testator  should  be  born  after 
the  execution  of  the  will,  and  no  provision  be  made  for  it  in  the  will, 
and  the  whole  estate  has  been  disposed  of  to  its  exclusion,  it  amounts 
to  a  revocation  of  the  will  ;  but  our  statute  (j)  expressly  provides 
that  in  such  case  the  will  shall  not  be  revoked  ;  but  unless  it  shall 
appear  by  such  will  that  it  was  the  intention  of  the  testator  to  dis- 
inherit such  child,  the  devises  and  legacies  granted  by  such  will 
shall  be  abated  in  equal  proportions,  to  raise  a  portion  for  such 

(g)  Coth.Annd.  R.  Stats.  1880,^.  543.         (j)  %  10,  R.  S.  1874,  319.    Cotliran's 
(h)  In  re  Tuller,  79  111.  99.  Annotated  Rev.  Statutes,  p.  543. 

(i)  4  Kent's  Com.  521. 


14  TESTATE    ESTATES.  [CH.  II. 


Wills. 


child  equal  to  that  which  it  would  have  been  entitled  to  receive  out 
of  such  testator's  estate,  if  he  had  died  without  making  a  will. 

The  statute  enabling  a  woman,  married  or  sole,  to  deal  with  her 
separate  estate,  she  may  in  either  event  execute  and  declare  a  will. 
This  will  be  subject,  of  course,  to  the  statute,  heretofore  mentioned 
as  to  the  revocation  of  wills  by  marriage.  The  revocation  of  a  will 
must,  when  intended  to  be  effectual,  be  made  in  the  form  pre- 
scribed by  statute. 

8.  PRODUCTION  OF  THE  WILL. 

(1.^  Venue. 

(2.)  Proceedings. 

(3.)  Petition  for  process  to  compel  the  same. 

(4.)  Order  for  process  and  the  entry. 

(5.)  Attachment  to  compel  the  production  of  a  will. 

(6.)  Jurisdiction,  facts  essential  to,  must  appear, 

(7.)  The  withholding  the  will. 

(8.)  Destruction  or  secretion,  a  felony. 

(9.)  Compulsory  process. 
(10.)  Renunciation,  how  made  and  recorded. 
(11.)  Administrator  with  the  will  annexed. 

(1.)  VENUE.  The  proper  county  in  which  to  proceed  for  the  pro- 
bate of  a  will,  in  case  of  a  resident  decedent,  is  the  county  of  his 
domicile  or  home.(?)  In  case  of  a  non-resident  decedent,  and  lands 
be  devised,  in  the  county  where  the  lands  or  some  part  of  them 
lie.(/)  If  there  be  no  lands,  then  in  the  county  where  the  testator 
died  or  where  the  estate  or  the  greater  part  of  it  is. 

(2.)  PROCEEDINGS.  On  the  death  of  a  testator  or  testatrix,  it  be- 
comes the  duty  of  the  custodian  to  deliver  up  the  will  to  the  county 
court  of  the  proper  county.(m)  In  case  of  failure  or  refusal  on  the 

(k)  In  re  TuOer,  79  111.  99.  Stat.  of  Wills,  R.  S.  1845,  540  ;  Hill's 

(I)  8  11,  R.  S.  1874,  p.  1103  ;  17  of     Chan.  Pr.,  Domicile,  50,  51. 

(m)  §  12,  R.  S.  1874,  p.  1104. 

*  The  act  of  1861  enables  married  women  to  exercise  dominion  over  their  separate 
estate,  and  clothes  them  with  the  jus  dixponendi  as  if  they  were  sole,  or  unmarried. 
Hill's  Ch.  Pr.  433,  610.  See  also  act  of  March  30, 1874,  in  relation  to  husband  and  wife. 
R.  S  1874,  ch.  86.  p. 576.  Cothran's  Statutes,  1880.  p.  1538. 


CH.  II. J  TESTATE   ESTATES.  15 


Wills. 


part  of  such  custodian  so  to  do,  an  attachment  to  compel  the  pro- 
duction of  the  will  may  be  obtained  at  the  instance  of  any  person 
interested  in  the  matter.  Any  party  desiring  the  production  of  the 
will  of  a  decedent,  which  he  knows  to  be  in  the  custody  of  any  per- 
son within  the  jurisdiction,  may  file  a  petition(w)  or  representation, 
substantially  in  form  as  follows  : 

(3.)  PETITION"  FOE  PEOCESS  TO  COMPEL  THE  PEODUCTION  OF  A 

WILL. 

ST°F 


Coun°tF  ^LIN°IS'  j  ss  :    In  the  County  Court  of  County. 

To  the  Hon.  ,  judge  of  said  court  : 

The  petition  of  A  B  respectfully  showeth  that  he  is  a  resident  of 
said  county;  that  on  the  day  of  ,  A.  D.  18  ,  C  D, 

who  then  resided  in  said  county,  died  at  ,  leaving  a  last 

will  and  testament  in  the  custody  of  E  F,  of  said  county  ;  that  E. 
F  hath  not  as  yet  delivered  up  the  said  will  to  this  honorable  court, 
according  to  the  statute  in  such  case  made  and  provided.  Where- 
fore, your  petitioner  prays  that  the  necessary  process  may  be  issued 
to  compel  the  production  of  said  will.  A  B. 

STATE  OF  ILLINOIS,  ) 
County  of  .  j  s' 

A  B,  being  duly  sworn,  says,  that  he  is  the  person  whose  name  is 
signed  to  the  above  and  foregoing  petition,  and  that  all  the  facts 
therein  stated  are  true  of  his  own  knowledge. 

AB. 

Subscribed  and  'sworn  to  before  me,  ) 
this      day  of  '  ,  A.  D.  18       .  J 

Cleric  (N.  P.  or  J.  P.) 

(4.)  OEDEE  AND  ENTEY.  Upon  such  a  representation,  the  court 
will  make  the  order,  and  the  clerk  an  entry  : 

In  the  matter  of  the  application  ) 

of  A  B  for  the  production  of  >• 

the  will  of  0  D,  deceased.         ) 

It  having  been  made  to  appear  by  the  representation  of  A  B  that 
on  the  day  of  ,  A.  D.  18  ,  C  D,  who  then  resided  in 

said  county,  died  at  ,  leaving  a  last  will  and  testament  in  the 

custody  of  E  F  of  said  county,  and  that  E  F  hath  not  as  yet  delivered 
up  the  said  last  will  to  this  court,  according  to  the  statute  in  such  case 
made  and  provided  ;  now,  therefore,  ordered  that  an  attachment  be 
issued  to  compel  the  production  of  the  said  will  to  this  court. 

Then  the  clerk  will  issue  the  attachment  in  form  as  follows  : 

(ri)  The  representation  of  nearly  all  procedure,  is  made  by  means  of  a  pe- 
facts,  upon  which  the  action  of  the  tition.  See  PROBATE  RECORD,  infra. 
court  is  based,  in  the  several  causes  of 


16  TESTATE   ESTATES.  [CH.  IL 


Wills. 


(5.)  ATTACHMENT  TO  COMPEL  THE  PKODUCTION  OF  A  WILL. 
STATE  OF  ILLINOIS,  ) 
County  of  .  [  s< 

The  People  of  the  State  of  Illinois :  To  the  sheriff  of  said  county, 
greeting : 

WHEKEAS,  It  is  represented  to  the  county  court  of  said  county, 
that  C  D,  deceased,  caused  his  last  will  and  testament  to  be  placed 
in  the  possession  of  E  F,  for  safe-keeping  (or  that  the  same  has 
fallen  into  his  possession,  as  the  case  may  be),  and  that  the  said  E  F 
fails  and  refuses  to  deliver  up  the  said  last  will  to  the  county  court 
of  said  county.  We,  therefore,  command  you  to  attach  the  body  of 
the  said  E  F,  and  bring  him  before  this  court  at  the  court-house  at  , 
on  the  day  of  ,  next,  to  show  cause,  if  any  he  can,  why 

he  should  not  be  fined  and  imprisoned  for  so  failing  and  refusing  to 
deliver  up  said  last  will  and  testament  of  the  said  C  D.  And  hereof 
make  return  as  the  law  directs. 

Witness,  ,  clerk  of  our  said  court,  and  the  seal  thereof,  at 

,  aforesaid,  this  day  of  ,  A.  D.  18  . 

[L.  s.]  ,  Clerk. 

(6.)  JUKISDICTION.  It  is  essential  that  it  should  appear  in  the 
petition,  that  the  court  to  which  application  is  made  is  the  proper 
one,*  in  order  to  give  the  court  jurisdiction. 

(7).  THE  WITHHOLDING  THE  WILL  subjects  the  custodian  to  a  pen- 
alty of  $20  per  month,  in  an  action  of  debt. 

(8.)  THE  DESTRUCTION  OF  A  WILL,  or  its  secretion  for  the  space  of 
six  months,  is  made  tantamount  to  larceny,  (o) 

(9.)  COMPULSORY  PROCESS.  On  the  production  of  the  will,  if  the 
court  have  jurisdiction,  the  court  may, of  its  own  motion,  inaugurate 
proceedings  against  the  executor  or  executors  named  therein  to  com- 
pel him  or  them  to  either  accept  or  renounce  the  trust.  ( p) 

In  case  of  refusal  to  accept  the  trust,  the  renunciation  should  be 
made  in  writing  and  recorded. 

(10.)  RENUNCIATION  BY  EXECUTOR.  In  case  an  executor  named 
wishes  to  renounce,  he  should  not,  in  any  way,  intermeddle  with  the 
estate  of  the  deceased,  but,  immediately  on  learning  of  his  appoint- 
ment, transmit  or  deliver  to  the  county  court  of  the  proper  county 

his  formal  renunciation : 

RENUNCIATION. 

To  Hon.  ,  Judge  of  the  County  Court  of  county,  in  the 

State  of  Illinois : 

I,  A  B,  do  hereby  renounce  the  appointment  of  executor,  conferred 
on  me  by  the  will  of  ,  deceased,  late  of  ,  county  of 

(o)  §  12,  Act  of  1872.  (p)  Act  March  20, 1872,  §§  7, 18. 

*  See  Venue,  p.  14,  supra. 


CH.  II. J  TESTATE   ESTATES.  17 

Wills. 

,  State  of  ,  and  refuse  to  take  any  part  in  its  probate, 

and  pray  that  you  will  duly  file  and  enter  of  record  this,  my  renun- 
ciation ;  and  I  further  state  that  I  have  not,  in  any  manner,  inter- 
meddled with  the  estate  of  said  deceased.  A  B. 
,  111.,  this             day  of            ,  A.  D.  18    . 

(11.)  ADMINISTRATOR  WITH  THE  WILL  ANNEXED.  On  entering  the 
renunciation  of  a  sole  executor,  the  estate  is  to  be  administered 
according  to  the  will.  The  court,  on  proper  application  or  of  its 
own  motion,  will  then  proceed  to  the  appointment  of  an  adminis- 
trator, cum  testamento  annexo,  who  becomes  to  all  intents  and 
purposes  the  actual  executor  of  the  will.(g') 

9.  CONSTRUCTION  OF  WILLS.*  Courts,  in  construing  a  will,  are 
bound  to  give  effect  to  every  clause  in  a  will,  if  possible,  and  at  the 
same  time,  to  the  intention  of  the  testator.(r)  A  husband  died 
testate,  leaving  a  widow,  but  no  '  children  or  lineal  descendants, 
and  provided,  in  his  will,  that  the  income  of  one-half  of  his  personal 
estate  should  be  paid  to  his  widow  during  her  life,  and  at  her  death 
should  be  distributed  among  his  collateral  kindred,  and  bequeathed 
the  other  half  to  various  persons.  The  widow  renounced  the  will, 
and  set  up  claim  to  the  entire  personal  estate.  Held,  that  in  such 
case  the  widow  was  only  entitled  to  one-third  of  the  personal  prop- 
erty remaining  after  the  payment  of  debts,  in  addition  to  the  award 
of  specific  property.(s)  By  the  widow's  renunciation  of  the  will,  the 
property  of  her  husband  is  not  thereby  converted  into  an  intestate 
estate.  The  will  remains,  notwithstanding  she  declines  its  provis- 
ions in  her  favor ;  and  in  such  case,  the  forty-sixth  section  of  the 
statute  of  wills,  which  applies  only  to  intestate  estates,  has  no  appli- 
cation. The  phrase,  "  her  share  in  the  personal  estate  of  her  hus- 
band," which  occurs  in  the  tenth  section  of  the  dower  act,  must  be 
understood  as  intending  to  give  to  the  widow,  in  such  case,  only 
such  share  of  the  personal  estate  as  shall  be  equal  to  one-third  part.(^) 
A  testator,  in  his  will,  bequeaths  to  his  wife  an  annuity,  together 
with  the  use  and  occupation  of  the  homestead  during  her  natural 

(q)  See  chapter  iii,  infra.  (t)  Id.  But  see  §  78,  act  April  1,  1872  ; 

(r)  Jones  v.  Doe,  1  Scam.  276.  p.  219   infra. 

(«)  McMurphy  v.  Boyles,  49  111.  110. 

*As  this  is  a  work  of  practice  and  not  elementary,  without  attempting  any  arrange- 
ment, we  have,  for  convenient  reference,  added  to  this  section  most  of  the  cases  to  be 
found  in  the  Illinois  reports  involving  the  construction  of  wills.  The  professional 
reader  would  naturally  consult  these  cases  themselves,  while  the  layman,  of  necessity, 
must  rely  upon  the  legal  adviser  for  counsel  in  such  intricate  matters,  as  the  cases 
will  show.  If,  however,  the  reader  desire  to  pursue  this  subject  systematically  and 
thoroughly,  the  work  of  Hon.  I.  F.  REDFIELD,  LL.  D.,  on  wills,  will  be  a  valuable 
assistant.  See  Hill's  Chan.  Pr.  56-70,  for  an  intricate  case  and  an  able  opinion  as  to 
a  will.  See  also  ch.  x,  infra,  and  Markillie  v.  Ragland,  77  111.  98. 

8 


18  TESTATE   ESTATES.  CH.  II. 

Wills. 

life,  or,  in  lieu  of  the  homestead,  bequeaths  to  her  $1,000,  to  be  paid 
to  her  by  his  executors  five  years  after  testator's  death,  or  sooner,  if 
she  shall  prefer  to  use  it  in  the  erection  of  a  dwelling-house,  upon  a 
lot  given  her  for  that  purpose,  if  she  so  elects,  together  with  certain 
other  town  lots,  to  further  aid  and  assist  in  the  erection  of  such 
dwelling-house.  Held,  that  under  such  a  will  the  widow  could  not 
be  barred  in  her  election,  between  these  provisions  contained  in  the 
will,  prior  to  the  expiration  of  the  five  years  after  the  testators 
death,  or  prior  to  a  tender,  by  the  executors  of  the  will,  of  the  alter- 
native devise  of  $l,000.(w) 

Where  a  testator  devised  land  to  his  wife  "  to  hold  and  dispose  of 
the  same  as  she  may  see  proper  during  her  widowhood,"  the  devisee 
will  not  take  an  estate  of  inheritance  which  will  pass  to  her  heirs, 
the  language  of  the  devise  clearly  limiting  the  extent  of  her  inter- 
est, (v)  The  construction  to  be  given  to  the  tenth  and  eleventh 
sections  of  our  statute  of  dower,  in  determining  the  share  of  the 
widow  in  the  personal  estate  of  her  deceased  husband,  where  she  has 
renounced  his  will,  is,  that  she  is  entitled  to  one-third  of  the  personal 
estate  after  the  payment  of  debts.  And  the  fact  that  there  are 
children  in  this  case  in  nowise  affects  the  question.(w)  Where  a  will 
empowered  the  executor  to  sell  all  of  the  testator's  lands  "  outside  of 
St.  Clair  county,"  for  the  payment  of  his  debts,  this  was  an  express 
limitation  upon  the  power  of  the  executor,  so  far  as  it  was  derived 
under  the  will,  to  sell  the  lands  of  the  testator  lying  outside  of  that 
county,  (z)  Where  the  power  of  the  executor  to  sell  lands  for  the 
payment  of  debts  is  limited  by  the  will  to  lands  situate  in  certain 
counties,  and  the  proceeds  of  sales  so  permitted  prove  insufficient  to 
pay  the  debts,  the  executor  may  apply  to  the  proper  court  and  pro- 
cure an  order  to  sell  so  much  of  the  lands  reserved  from  sale  in  the 
will  as  may  be  necessary  to  pay  the  residue  of  the  debts.  In  no 
other  way  can  the  executor  obtain  the  authority  to  sell  the  lands 
beyond  that  given  by  the  will.(y)  The  rule  is,  if  there  be  no  words 
in  any  part  of  the  will  to  control,  the  words  or  terms  used  must  be 
interpreted  according  to  their  strict  and  technical  import.  So  con- 
struing them,  the  persons  appointed  by  law  to  succeed  to  an  estate, 
as  in  case  of  intestacy,  are  the  persons  designated.  An  estate  left  in 

(u)  Gale  v.  Gale,  48  HI.  471.  (x)  Kinney  v.  Knoebd,  51  111.  113. 

(v)  Mulberry  v.  Mulberry,  50  111.  67.          (y)  Id. 
(w)  Skinner  v.  Neicberry,  51  111.  203. 


UH.  II.]  TESTATE   ESTATES.  19 

Wills. 

such  a  condition  as  to  the  disposition  of  it,  is,  to  all  intents  and 
purposes,  an  intestate  estate,  (z) 

A  will  containing  no  specific  devises  or  bequests,  but  simply  ap- 
pointing the  executors  to  administer  the  estate,  and  directing  the 
payment  of  the  debts  of  the  testator,  provided  as  follows :  "  And  the 
remainder  or  balance  of  my  interest,  of  every  kind  whatsoever,  may 
be  distributed  to  my  heirs  at  law,  according  to  the  statute  of  Illi- 
nois, for  such  case  made  and  provided."  Held,  that  such  a  dirgction 
is  equivalent  to  a  devise  or  bequest  to  those  who  would  take 
the  estate  under  our  statute  of  distributions  if  the  estate  were 
intestate,  (z)  The  owner  in  fee  of  a  tract  of  land  in  this  State 
devised  his  property  as  follows :  "  I  leave  and  bequeath  all  the  prop- 
erty, movable  and  immovable,  of  which  I  may  die  possessed,  to  my 
said  wife ;  this  legacy  is  made  in  usufruct,  and  during  the  life-time 
of  my  said  wife,  and  at  her  death  the  whole  of  which  will  revert  to 
the  children  which  I  have,  or  may  have,  from  such  marriage." 
Held,  that  on  the  death  of  the  testator,  the  widow  took,  under  this 
devise,  a  life  estate  in  the  land,  a  freehold,  and,  under  our  statute, 
subject  to  execution. (a)  A  will  provided  as  follows :  "I  give  and 
bequeath  all  of  the  rents  and  profits  of  my  farm,  that  I  now  own,  in 
the  town,  county  and  State  aforesaid,  to  my  wife,  Deliverance  K. 
Lester,  and  also  all  my  personal  property,  consisting  of  live  stock,  and 
also  the  interest  on  all  moneys  and  credits  due  me  at  my  death,  so 
long  as  she  remains  my  widow,  except  hereafter  devised ;  and  after 
her  death  or  marriage,  I  wish  the  property  and  real  estate  to  be 
equally  divided  between  my  children,"  etc.  Held,  this  was  not  an 
absolute  gift  of  the  personalty  to  the  widow,  but  was  intended  as  a 
bequest  to  her,  to  be  enjoyed  during  her  life  or  widowhood,  having 
reference  as  well  to  the  live  stock,  moneys  and  credits,  as  to  the  use 
of  the  farm.  They  were  not  of  that  perishable  character  which  for- 
bade a  life  estate  being  created  in  them.  It  is  a  general  principle, 
that  where  an  interest,  short  of  absolute  ownership,  is  given  in  the 
general  residue  of  personal  estate,  terms  for  years,  and  other  perish- 
able funds  of  property  which  may  be  consumed  in  the  use  are  to  be 
converted  or  invested,  so  as  to  produce  a  permanent  capital,  and  the 
income  thereof  only  is  to  go  to  the  legatee  for  life.  So  in  this  case, 
the  tenant  for  life  should  convert  the  live  stock  into  money,  and 

(z)  Rawson  v.  Rawson,  52  EL  62  ;       (a)  Newman  v.  Willetts,  52  111.  99. 
Hill's  Chan.  Pr.  62. 


TESTATE   ESTATES.  [CH.  II. 


Wills. 


save  the  principal  for  those  who  were  to  come  to  its  enjoyment  on 
her  death  or  marriage. (b) 

Where  a  life  estate  is  created  in  personal  property,  with  a  limita- 
tion over,  a  court  of  chancery  may  require  the  legatee  for  life 
to  give  security  to  the  remainder-man  that  the  fund  shall  not  be 
wasted  or  misapplied.  An  exception  to  the  rule  that  there  may 
be  a  life  estate  in  chattels  which  are  not  of  a  perishable  nature,  and 
a  limitation  over,  is  in  case  of  a  bequest  of  specific  things,  as  corn, 
hay  and  fruit,  of  which  the  use  consists  in  the  consumption.  The 
gift  of  such  articles  for  life  is,  in  most  cases,  of  necessity,  a  gift  of 
the  absolute  property,  for  the  use  and  the  property  cannot  exist 
separately.(S)  The  mere  making  of  a  bequest  to  a  creditor  of  the 
testator,  of  a  sum  of  money  equal  to  or  greater  than  the  debt,  and 
which  might  in  the  particular  case  be  regarded  as  a  satisfaction  of 
the  debt,  would  not  operate  to  defeat  an  allowance  of  the  claim 
against  the  estate,  to  be  paid  in  due  course  of  administration,  with 
other  debts  in  the  same  degree.  Such  a  legacy  must  be  paid  before 
it  can  be  set  up  as  a  discharge  of  the  debt.  When  a  creditor  to 
whom  his  debtor  has  made  a  bequest,  equal  to  or  greater  than  his 
debt,  obtains  an  allowance  and  payment  of  his  claim,  and  after- 
ward demands  his  legacy  from  the  executor,  the  latter  may  then 
raise  the  question  whether  it  was  intended  as  a  gift,  independently 
of  the  payment  of  the  debt,  or  merely  as  a  satisfaction  of  the 
debt.(c)  M.  devised  and  bequeathed  by  will  all  his  estate  to  his 
daughter  R. ;  but  if  she  died  before  she  became  of  age,  then  to 
his  friend  G.  S. ;  R.  died  before  she  became  of  age,  and  G-.  S. 
died  before  R.  It  was  held,  that  the  devise  to  Gr.  S.  was  a 
good,  executory  devise,  and  that  the  estate  passed  to  his  heirs. (d) 
A  testator,  after  devising  all  his  estate,  real  and  personal,  to  his 
wife,  so  long  as  she  should  remain  his  widow,  proceeded:  "Upon 
the  marriage  or  death  of  my  wife,  it  is  my  will  and  desire  that  all 
the  property  which  I  leave  in  her  possession,  or  that  may  accrue 
from  it,  may  be  equally  divided  between  all  my  brothers  and  sisters' 
children,  giving  each  one  an  equal  share,  except  J.  J.  R.,  my  brother 
Leonard  Ross'  oldest  son,  who  I  do  not  intend  shall  have  any  share 
of  my  estate."  This  was.  held  a  devise  of  after-acquired  real  estate, 
and  disherison  of  J.  J.  R.(e)  If  land  be  devised  to  a  person  for 

(6)  Burnett  v.  Lester,  53  111.  325.  (d)  Ackless  v.  Seekright,  Breeae,  46. 

(c)  Malony  v.  Scarilan,  53  111.  122.  (e)  Willis  v.  Watson,  4  Scam.  64. 


CH.  II.]  TESTATE   ESTATES.  21 

Wills. 

life,  and  "  at  her  death*  she  may  dispose  of  it  as  she  pleases,"  an 
estate  for  life  only  passes,  and  the  devisee  may  dispose  of  the  rever- 
sion or  inheritance  by  deed  or  by  will.(/)  "Where  real  estate  is 
devised,  and  by  the  conditions  of  the  will  is  to  be  sold,  and  the 
money  distributed  among  the  devisees,  it  must  be  treated  as  a 
devise  of  money,  and  not  of  land.  Though  a  devisee  may  elect 
to  take  land  instead  of  the  money,  yet  the  character  of  the  devise 
cannot  be  changed  from  money  to  land  without  the  concurrence  of 
all  the  devisees.  In  such  case,  one  devisee  cannot  convey  a  valid 
title  to  any  part  of  the  land,  neither  can  the  interest  of  one  of  the 
devisees  be  sold  on  execution.  A  purchaser  at  a  sheriff's  sale  of 
the  interest  of  one  of  the  devisees,  in  such  case,  is  not  entitled  to 
receive  that  portion  of  the  money  produced  by  the  sale  of  the  land 
to  which  the  devisee  was  entitled  under  the  will,  the  devisee  having 
no  interest  in  the  land  which  could  be  levied  upon  under  execution. 
A  femme  couverte  is  competent  to  elect  to  take  the  land  instead  of 
the  money;  but  the  same  forms  and  solemnities  are  required  for 
that  election  as  are  by  law  necessary  to  enable  her  to  convey  her 
fee.(^)  Under  the  statute  of  wills,  the  real  estate  of  the  deceased 
is  liable  for  his  debts  and  funeral  expenses,  as  a  secondary  fund ; 
and  it  would  not  be  otherwise  under  a  will,  charging  all  debts  and 
legacies  upon  the  realty,  unless  the  intention  to  change  the  legal 
order  of  liability  was  very  clear.  Where  it  was  directed  by  will  that 
all  debts  and  funeral  expenses  were  to  be  paid  out  of  the  first 
moneys  that  should  come  into  the  executor's  hands,  from  any  por- 
tion of  the  estate,  real  or  personal,  and  legacies  were  given  in  the 
same  will,  and  the  lands  were  not  devised  to  the  executors,  but  a 
power  given  them  to  sell  generally,  when  they  think  proper,  with- 
out expressing  any  object  for  the  sale,  or  directing  any  application 
of  the  proceeds,  and  there  is  no  proof  that  the  personalty  was  not 
sufficient  to  pay  debts,  funeral  expenses  and  legacies,  the  lands  will 
descend  to  the  heirs  subject  to  be  incumbered  or  sold  at  the  execu- 
tors' discretion.  Such  a  power  of  sale  is  a  naked  power,  and  though 
courts  will  uphold  rights  derived  from  its  proper  exercise,  equity 
will  not  compel  its  exercise.(A)  If  a  testator  disposes  of  property,  in 
which  he  has  a  limited  interest,  e.  g.,  curtesy,  it  becomes  a  question 
.  of  intention,  to  be  decided  from  the  terms  of  the  instrument,  how 

(/)  Fairman  v.  Beal,  14  111.  244.  (h)  Clinefelter  v.  Ayers,  16  HI.  329. 

(g)  Baker  v.  Copenbarger,  15  111.  103. 


22  TESTATE   ESTATES.  [CH.  II. 


Wills. 


large  an  interest  he  meant  to  devise.(t)  A  clause  in  a  will,  be- 
queathing "  all  real  and  personal  estate,  except  as  hereinafter  indi- 
cated," to  certain  devisees,  necessarily  includes  lands  out  of  the 
State  in  which  the  will  was  made,  which  could  pass  by  it ;  and  a 
subsequent  direction  to  executors  to  sell  such  land  "or  otherwise 
as  they  shall  deem  proper,"  does  not  take  the  land  out  of  the  general 
clause,  but  only  empowers  the  executors  to  change  its  form.(y) 
A  testator  devised  real  estate  to  his  wife  and  two  others,  and  to 
the  survivor  or  survivors,  to  hold  the  same  until  his  youngest  child 
should,  if  a  son,  become  twenty-one,  and,  if  a  daughter,  eighteen 
years  old,  in  trust  for  all  his  surviving  children,  their  heirs  and 
assigns,  as  tenants  in  common.  Held,  that  all  the  testator's  chil- 
dren living  at  his  death  were  his  devisees,  all  taking  a  vested  fee 
simple  estate  (subject  to  the  trust  estate),  which,  so  subject,  could 
be  sold  by  them  or  on  execution. (k)  If  the  devisees  would  also  be 
heirs  at  law  of  the  estate  devised,  they  cannot  be  held  to  have  for- 
feited the  estate,  until  it  be  shown  that  they  committed  the 
breach  of  the  condition  with  full  knowledge  both  of  the  condi- 
tions and  its  consequences. (I)  Held,  that  the  following  words 
of  devise  in  a  will  gave  the  devisee  an  estate  of  inheritance:  "I 
will  and  bequeath  to  my  oldest  daughter,  Margaret  Jane  Eliza- 
beth Holliday,  eighty  acres  of  land  where  my  house  and  well  stand, 
to  her  and  heirs  forever,  never  to  be  mortgaged  nor  sold  forever."(w) 
Where  a  will  directed  that  the  debts  of  the  testator  be  paid  out  of 
the  avails  of  personal  property,  unless  other  arrangements  could  be 
made ;  that  a  house  should  be  built ;  that  certain  legacies  should  be 
paid  his  children  at  their  majority,  and  for  that  purpose  his  executors 
might  dispose  of  real  estate ;  that  his  wife  should  have  the  control 
of  all  his  property,  until  the  youngest  child  should  become  of  law- 
ful age,  for  the  support,  education  and  maintenance  of  the  children, 
and  directed  how  the  property  should  be  divided.  It  was  held,  that 
after  the  payment  of  the  debts,  and  the  reservation  of  sufficient 
estate  to  satisfy  the  specific  legacies,  the  residuum  should  be  under 
the  control  of  the  wife,  until  the  event  should  occur,  when,  under 
the  will,  the  remainder  was  to  be  distributed,  and  that  the  wife 
received  not  in  fee  but  as  trustee.  That  the  wife  had  not  even  a 

(f)  WObanks  v.  WiZbanks,  18  111.  17.         (Z)    Shackelford  v.  Hall,  19  111.  212. 
(j)  Hurt  v.  McCartney,  18  111.  129.  (m)  Holliday  v.  Dixon,  27  111.  33. 

(K)  Hempstead  v.  Dickson,  20  111.  193. 


CH.  II.]  TESTATE   ESTATES.  23 


Wills. 


life-estate  in  the  remainder,  but  only  the  power  to  control  in  the 
interim,  before  distribution  was  required  within  the  limit  directed 
by  the  will.  That,  should  the  wife  attempt  to  abuse  the  trust,  a 
court  of  equity  would  restrain  her,  and  compel  a  proper  application 
of  the  estate,  (m)  Under  such  a  will,  the  wife  was  not  to  account 
to  the  probate  court,  until  the  time  fixed  by  the  will  for  the  distri- 
bution of  the  estate;  also,  that  the  money  received  on  the  sale 
of  the  land,  after  payment  of  the  debts,  and  the  specific  legacies 
due,  after  reserving  enough  for  the  other  legacies,  should  be  paid 
to  the  widow.(w)  Where  A  devised  to  his  wife  for  life  his  home- 
stead to  use,  as  if  fully  her  own,  and  on  her  death,  part  of  the 
same  over,  and  the  land  not  included  in  the  above  bequest  to 
his  wife  to  dispose  of  at  her  death,  and  owned  only  the  home- 
stead, it  was  held,  that  a  deed  in  fee  by  her  took  effect  on  her 
death,  and  that  she  could  not  dispose  of  her  life  interest(o)  A 
devise  to  a  wife  of  all  testator's  property,  except  such  portion  of 
certain  described  lands  as  shall  be  necessary  for  the  payment  of 
debts,  to  hold  during  widowhood,  vests  a  life  estate  in  the  widow.(j») 
A  husband  devised  certain  land  to  his  wife,  "  to  have  and  to  hold 
during  her  natural  life,  to  occupy  and  use  said  land  in  the  same  way 
as  it  would  be  lawful  for  her  to  do  if  the  title  were  full  and  complete 
in  her  *  *  *  to  dispose  of  at  her  death  to  any  person  she  may 
think  best  to  live  with  her  and  take  care  of  her."  Held,  that  the 
wife  had  no  power  to  alien  during  her  life.(<?)  A  devise  was  of  all 
the  residue  of  the  testator's  estate,  there  was  no  limitation  over. 
Held,  that,  under  the  statute,  the  devisee  took  the  fee  of  the  realty.(r) 
Where  the  owner  of  land  devises  the  same,  there  being  a  growing 
crop  on  the  land  at  the  time  the  title  of  the  devisee  vests,  the  crop 
being  owned  by  the  testator  and  another  as  tenants  in  common 
thereof,  the  portion  of  the  crop  which  would  have  belonged  to  the 
testator,  had  he  lived  until  it  matured,  would  pass  with  the  land 
itnder  the  devise,  there  being  no  reservation  of  the  crop  in  the  will.(s) 
A  testator  devised  to  M.  "so  much  of  lots  renumbered  1  and  2 
in  block  No.  15,  in  the  southern  addition  of  Miller  and  others  to 
Bloomington,  as  is  now  inclosed  by  fence,  including  the  house 
where  the  widow  C  now  lives."  These  lots  were  inclosed  by  an 

(m)  Holliday  T.  Dixon,  27  111.  33.  (?)  Christy  v.  Ogle's  Ex'rs,  33  111.  295. 

(n)  Estate  of  Whitman,  22  111.  511.  (r)  McConnel  v.  Smith,  23  111.  611. 

(d)  Pulliam  v.  Christy,   19  111.  331.  (s)  Creel  v.  Kirkham,  47  111.  344;  see, 

(p)  Batterton  v.  Toakum,  17  111.  288.  also,  Potcett  v.  Rich,  41  id.  466. 


TESTATE   ESTATES.  [CH.  II. 


Wills. 


exterior  fence,  and  there  were  also  two  interior  fences  running  north 
and  south,  so  as  to  form  three  distinct  inclosures.  The  house  occu- 
pied by  the  widow  C  was  on  the  north-west  corner  of  lot  2,  and 
was  inclosed  in  the  separate  division  formed  by  a  portion  of  the 
north  and  south  exterior  fences,  and  all  of  the  outside  western  fence 
and  the  interior  fence  equally  dividing  lot  2.  The  dwelling-house 
of  the  testator  was  on  lot  1.  Held,  that  the  western  half  of  lot  2 
alone  passed  by  the  devise,  (t)  A  testator  devised  a  portion  of  his 
estate  to  the  "  children  of  his  brother,"  giving  the  brother  uncon- 
trolled management  and  disposal  of  the  same  till  the  youngest  child 
should  become  of  age.  Held,  that  the  brother  took,  thereby,  a 
particular  estate  which  prevented  the  devise  from  .vesting  in  posses- 
sion in  the  children  till  the  youngest  child  became  of  age,  and, 
therefore,  a  child  born  after  the  death  of  the  testator  was  included 
in  the  devise.(w)  A  testator,  by  one  clause  in  his  will,  gave  his  wife 
$1,200  in  money,  and  his  household  furniture  "to  her  and  her  heirs 
and  assigns  forever ; "  and  by  the  next  clause  gave  her  the  balance 
of  all  his  personal  property,  of  every  description,  etc.,  "  to  be  at  her 
own  disposal  and  for  her  own  proper  use  and  benefit  during  her 
natural  life."  Held,  that,  under  the  last  clause,  she  took  only  a  life 
interest  in  the  residuary  estate.(v)  A  will  contained  this  clause : 
"  I  give  and  bequeath  to  my  beloved  wife,  Antonia,  all  my  real  and 
personal  estate,  wherever  situated,  in  fee  simple,  absolute  forever ; 
that  is  to  say,  that  my  said  wife  shall  have  all  of  the  benefits  thereof 
until  the  expiration  of  her  life,  at  which  time  my  son  Anton  shall 
be  the  only  heir  of  real  or  personal  estate  that  may  be  left."  Held, 
that  the  wife  took  only  an  estate  for  life  in  the  real  estate,  and  that 
there  was  a  remainder  in  fee  to  the  son.(w)  A  testator  gave  to 
his  wife  all  his  estate,  to  be  disposed  of  in  any  way  that  would 
best  support  her  for  life,  but  if  his  sons,  John  and  Thomas, 
should  take  care  of  their  mother,  they  were  to  have  certain  lands, 
but  if  they  failed  to  support  her,  then  she  could  sell  the  laud, 
or  any  part  of  it,  to  support  herself;  but  if  the  sons  complied 
with  these  conditions,  they  were  to  take  immediate  possession  of 
the  land;  there  were  bequests  to  other  children.  Held,  that  the 
testator  intended  to  charge  his  entire  estate  with  the  support  of  his 
widow;  that  the  question  of  support  was  a  condition  subsequent, 

(t)  Mason  v.  Ely,  38  111.  138.  (v)  Boyd  v.  Strahan,  36  111.  356. 

(u)  Handberry  v.  Doolittle,  38  111.  202.        (w)  Siegwald  v.  Sie.gwald,  37  111.  430. 


CH.  II.]  TESTATE   ESTATES.  25 


Wills. 


the  word  "  comply  "  being  used  in  the  sense  of  "  assent,"  and  when 
John  and  Thomas  assented,  the  estate  passed  to  them,  burdened 
with  the  condition  of  the  support  of  the  mother;  and  that  the 
widow  of  John  being  his  heir,  and  proffering  to  support  the  widow, 
had  a  right  to  inherit  and  possess  the  estate,  and  could  compel  the 
grantee  of  the  widow  to  reconvey  to  her. (a;)  Held,  that  the  follow- 
ing clause  of  a  will  intends  a  distribution  per  capita,  and  not  per 
stirpes:  "The  balance  remaining  of  said  fund,  I  hereby  direct 
shall  be  equally  divided  between  the  children  of  my  late  brother  P., 
and  my  brother-in-law  B.,  of  the  city  of  Chicago,  a  large  portion 
of  my  property  haying  been  received  through  his  father,  and  the 
father  of  my  late  wife."(y)  A  testator  directed  that  part  of  the 
proceeds  of  his  estate  should  be  invested,  and  that  one  of  his 
devisees  should  be  entitled  to  it  when  he  "  became  of  the  age  of 
twenty-one ; "  adding,  "  should  he  die  before  he  arrives  at  the  age 
of  twenty-one,  or  die  without  heirs,"  then  the  estate  shall  go  to 
another  devisee.  Held,  that  the  word  "or"  was  to  be  construed 
as  "  and,"  and  that,  on  the  devisee  attaining  his  majority,  although 
without  issue,  the  legacy  vested  absolutely  in  him.(z)  A  testator 
directed  his  executor  to  sell  all  his  real  estate,  and,  after  paying 
his  debts,  to  divide  the  proceeds  equally  among  his  four  children, 
and  in  case  any  of  them  died,  "  then  to  be  divided  among  their 
children;  the  child  or  children  of  each  one  taking  their  deceased 
parent's  portion  among  them."  Held,  that  one  of  them,  having  died 
intestate  before  the  conversion  of  the  estate  into  money,  leaving 
issue,  his  portion  should  be  paid  over  to  his  administrator,  to  be 
held  in  trust  for  his  children,  his  widow  being  entitled  to  no  interest 
therein,  (a)  A  testator  directed,  in  his  will,  that  his  whole  estate, 
except  a  discretionary  reservation  by  his  executrix  and  executor  for 
the  support  of  his  widow  and  education  of  his  youngest  children,  be 
invested  and  re-invested  in  United  States  bonds,  and  that,  "  at  the 
end  of  fifteen  years  from  and  after  his  death,  the  trust  thus  created 
shall  cease,  and  all  his  estate  then  be  distributed  among  his  wife  and 
children  in  this  manner,  viz. :  the  sum  of  $10,000  to  be  paid  to  his 
wife,  to  be  held  by  her  as  her  absolute  property ;  the  remainder  to 
be  divided  among  his  children  according  to  the  laws  of  this  State, 
each  one  of  the  children  to  be  charged  with  such  sums  as  have  been, 

(x)  Jennings  v.  Jennings,  27  111.  518.        (z)  Kindig  v.  Smith,  39  111.  300. 
(y)  Pitney  v.  Brown,  44  111.  363.  (a)  People  v.  Jennings,  44  111.  488. 

4 


26  TESTATE   ESTATES.  [CH.  II. 


Wills. 


or  may  be,  charged  against  them  as  advancements."  Five  of  the 
children  were  adults.  Held,  that  the  testator  had  power  so  to  dis- 
pose of  his  estate,  and  the  will  was  valid.(J)  A  husband  devised  to 
his  wife  one-third  of  all  his  real  estate,  "  to  be  used  and  occupied  by 
her,  with  the  rents  and  profits  thereof,  for  and  during  the  term  of 
her  natural  life,"  with  a  remainder  in  trust  for  his  children,  with  a 
provision  that,  if  they  should  permit  any  portion  of  the  real  estate 
to  be  sold  for  taxes,  and  it  should  not  be  redeemed,  they  should  for- 
feit the  unredeemed  portion.  Held,  that  the  wife  was  not  relieved 
from  paying  the  taxes  accruing  upon  her  estate.  A  testator,  by  the 
terms  of  his  will,  required  the  division  and  payment  of  his  property, 
not  otherwise  bequeathed,  to  his  two  children  when  the  younger 
should  attain  twenty-one  years,  to  be  held  by  them  during  life,  and, 
in  the  event  of  the  death  of  either,  before  arriving  at  the  age  of 
twenty-one,  without  lawful  heirs,  his  share  to  go  to  the  survivor  on 
arriving  at  majority.  And  a  condition  was  annexed  that  they  should 
not  have  the  power  to  sell  or  incumber  the  fund,  or  subject  it  to 
sale  on  legal  process  for  their  debts,  and  if  any  effort  was  made  to 
sell  or  incumber  it,  the  party  so  attempting  should  forfeit  his  share, 
and  it  should  pass  to  the  next  person  in  remainder;  and,  in  the 
event  of  the  death  of  the  legatees,  or  a  forfeiture  of  the  property,  if 
they  have  lawful  issue  or  descendants  of  such  issue,  the  property  to 
vest  in  them,  and  if  neither  have  issue,  then  the  property  to  vest  in 
certain  collateral  relatives  designated  in  the  will.  Held,  that  the 
bequest  was  not  void  for  perpetuity.(c) 

AN  ABSOLUTE  PROHIBITION  OF  MARRIAGE,  till  twenty-one  years 
of  age,  in  a  devise,  is  reasonable  and  lawful,  and  is  a  good  condition 
subsequent,  the  violation  of  which  may  defeat  a  vested  estate. (d) 
Words  of  inheritance  are  not  necessary  to  pass  an  estate  in  fee 
simple,  by  will.(e)  In  this  State,  a  testator  may  devise  after-acquired 
real  estate.(/)  If  there  be  in  a  will  two  devises  of  the  same  prop- 
erty to  different  persons,  the  first  creating  an  estate  of  inheritance, 
the  second,  without  words  of  perpetuity,  will  not  destroy  the  first, 
and  will  create  a  life  estate  only,  with  reversion  in  the  heirs  of  the 
first  devisee,  (e) 

"We  have  added  the  cases  to  be  found  in  the  Illinois  reports  on 

(b)  Rhoads  v.  Ehoads,  43  111.  239.  (e)  Jones  v.  Doe,  1  Scam.  276. 

(e)  Waldo  v.  Cummings,  45  111.  421.          (f)WUlis  v.  Watson,  4  Scain.  64. 
(<f)  Shackleford  v.  Hall,  19  111.  212. 


CH.  II.]  TESTATE    ESTATES.  27 


Probate  of  wills. 


this  subject  as  collated  under  the  subject  of  trusts  in  our  work  for 
another  jurisdiction.  By  consulting  the  text-books  of  Jarimin, 
Wigram,  Kedfield  and  Willard,  the  reader,  if  he  desire  to  pursue 
this  subject  further,  will  find  ample  room  for  investigation  and 
research.  We  now  pass  to  the  probate  of  wills,  through  which  they 
are  put  into  execution.  / 

SECTION   II. — PKOBATE   OF   WILLS. 

1.  Definition.  3.  Dedimus  potestatem . 

2.  The  probate  record.  4.  Instructions. 

3.  Duties  of  executoff  5.  Proof  of  wills. 

1.  Before  probate.  1.  The  decisions. 

2.  Before  entering  upon  duty.  2.  The  Statute. 

4.  Practice.  9.  Clerk's  entries  and  forms  of  certifi- 

5.  Petition  for  letters.  cate  of  proof. 

6.  Oath  of  executor.  10.  The  letters  testamentary. 

7.  His  bond.  11.  Nuncupative  will. 

8.  The  hearing.  1.  Citation  to  persons  interested. 

1.  Subpoana  to  witnesses.  2.  Notice  to  non-residents. 

2.  Attachment  to  compel  attend-     12.  Foreign  will. 

ance.  13.  Lost  will. 

1.  THE  PKOBATE  OF  A  WILL  is  the  proof,  made  before  an  officer 
or  court,  designated  by  law  for  such  purpose,  that   the  instrument 
is  the  act  of  the  person  purporting  to  have  executed  it.     The  pro- 
bate of  a  will  is  an  absolute  necessity  of  the  law;  the  testator  can- 
not evade  it.(j) 

All  proceedings  before  the  county  court,  the  same  being  a  court 
of  record,  produce,  as  at  common  law  or  in  chancery,  a  record. 

2.  THE  PEOBATE  KECOED  is  as  essential  as  the  chancery  or  the 
common-law  record  is,  respectively,  to  such  jurisdictions.     And, 
because  these  courts  are  of  special  jurisdiction,  even  greater  care  is 
due   to    their  preparation.     It  must  never  be  forgotten  that  the 
record  must  affirmatively  show  the  jurisdictional  facts  that  collateral 
impeachment  may  be  avoided. 

A  party  seeking  the  probate  of  a  will  must  file,  in  the  office  of 
the  county  or  probate  clerk  of  the  proper  county,  a  verified  petition, 
and  produce  the  will,  if  it  be  not  lost  or  destroyed;  upon  this  peti- 
tion and  the  will  the  court  immediately  will  act. 

3.  PEELIMINAEY  DUTIES  OF  EXECUTOE. 

(1.)  BEFOEE  PEOBATE.  The  executor  must  see  that  the  will  is 
proved  and  recorded,  within  thirty  days  from  the  testator's  death, 

(f)  Harris  v.  Douglas,  64  111.  466. 


28  TESTATE    ESTATES.  [CH.  II. 


Probate  of  wills. 


in  the  proper  county,  or  he  may  present  the  will  and  declare  his 
refusal  to  accept  the  execute rship;  either  of  these  under  penalty  of 
a  fine  of  twenty  dollars  per  month  after  the  expiration  of  the  thirty 
days  allowed  him,  which  fine  may  be  recovered  by  any  person  in  any 
court  of  competent  jurisdiction.  Any  person  of  the  age  of  seven- 
teen years,  of  sound  mind  and  memory,  may  be  an  executor;  but 
the  court  controls  the  estate,  in  all  cases,  where  the  executor  is 
under  twenty-one  years  of  age,  until  he  reaches  his  majority,  (k) 
It  is  a  statutory  duty  of  the  court,  in  the  event  of  the  appointment 
of  a  minor,  one  of  unsound  mind  or  one  who  is  convicted  of  crime, 
unless  there  be  another  executor,  who  accepts  the  trust,  to  grant,  to 
some  competent  person,  administration  with  the  will  annexed,  that 
he  may  act  until  the  minor  becomes  of  full  age  or  the  disability  of 
the  others  be  removed. 

The  power  of  the  executor  over  the  estate  of  the  deceased,  before 
probate  of  the  will  and  obtaining  letters  testamentary,  extends  to 
the  burial  of  the  deceased,  the  payment  of  necessary  funeral  charges, 
and  the  taking  care  of  the  estate. (I) 

(2.)  BEFORE  ENTERING  UPON  HIS  DUTIES,  he  must  apply  to  the 
court  for  letters  testamentary,  take  the  oath,  and  give  a  bond,  with 

food  and  sufficient  security,  in  a  sum  double  the  value  of  the  estate.(m) 
ureties  may  be  waived,  when  the  testator  leaves  visible  estate 
more  than  sufficient  to  pay  all  his  debts  and  shall  so  direct  by  his 
will,  unless  the  court  sitting  in  probate  shall  see  cause,  from  its  own 
knowledge  or  the  suggestion  of  creditors  or  legatees,  to  suspect 
the  executor  of  fraud,  or  that  the  personal  estate  will  not  be  suffi- 
cient to  satisfy  all  the  debts. 

4.  PRACTICE;  HOW  TO  BE  APPOINTED  EXECUTOR.  Take  the  will 
to  the  county  court  of  the  proper  county;  obtain  from  the  clerk  a 
petition  and  a  bond  in  blank;  fill  them  out  with  care;  write  on  the 
back  of  the  petition  the  names  of  two  persons  to  serve  as  appraisers ; 
file  them  with  the  clerk;  pay  his  costs  and  fees;  have  two  of  the 
subscribing  witnesses  to  the  will  sworn,  examined  by  the  court  and 
their  testimony  reduced  to  writing  and  filed  in  court.  Present  the 
bond  signed  and  in  a  penalty  of  double  the  value  of  the  estate  to  be 
administered;  get  the  bond  approved,  file  it  and  take  the  oath  of 
office.  These  steps  taken,  the  clerk  will  make  the  record,  and  issue 
letters  testamentary.  The  record  is  made  up  of  the  petition,  the 
bond,  the  oath,  the  orders,  including  the  will  and  the  testimony 
reduced  to  writing. 

(k)  %%  2,  3,  R.  S.  1874,  p.  104.  (m)  $%  6,  7,  R.  S.  1874,  p.  105;  Coth- 

(0  §  4,  id.  ran's  Statutes,  1880.  p.  49. 


CH.  II.]  TESTATE   ESTATES.  29 


Probate  of  wills. 


The  following  form  is  used  in  the  probate  court  of  Cook  county 
for  the 

5.  PETITION  FOR  LETTERS  TESTAMENTARY. 
STATE  OP 


.       In  the  county  coupt  of          county 

Of  the  Term,  A.  D.  18     . 

To  the  Hon.  ,  judge  of  said  court  : 

The  petition  of  respectfully  shows  that  he  is  a  resident  of  said 

county  :  that  on  the  day  of  ,  A.  D.  18     ,  of 

,  in  said  county,  departed  this  life  at  ,  leaving  a  last 

will  and  testament,  duly  signed  and  attested  as  your  petitioner  believes,  which 

he  now  presents  to  your  honor  for  probate.     That  said  testator  in  said  will 

nominated  your  petitioner,  ,   executor  thereof.     That  said  deceased 

left  property  and  effects  as  follows  :  (here  state.) 

That  the  value  of  the  whole  estate  of  said  deceased  does  not  exceed 
dollars.     That  said  deceased  left  him  surviving  ,  his  only  heirs  at  law. 

That  your  petitioner  resides  at  ,  and  willing  to  accept  and  under- 

take the  trust  confided  to  in  said  will,  wherefore  your  petitioner  prays 

that  the  said  will  maybe  admitted  to  probate,  and  letters  testamentary  thereon 
may  be  issued  to  after  proper  hearing  and  proof,  and  that  all  other 

necessary  orders  may  be  made. 

STATE  OP  ILLINOIS,  ) 
County  of  .  f  ss 

,  being  duly  sworn,  says  that  the  foregoing  petition  by  sub- 

scribed is  true. 

Sworn  to  and  subscribed  before  me, 
clerk   of  the  county  court  of  county, 

this  day  of  ,  A.  D.  18    . 

,  Clerk. 

At  the  time  of  proving  the  will  the  executor  will  be  required  to 
take  and  subscribe  the  oath  as  follows  : 

6.  OATH  OF  EXECUTOR. 

I  do  solemnly  swear  (or  affirm),  that  this  writing  contains  the  true  last 
will  and  testament  of  the  within-named  A  B,  deceased,  so  far  as  I  know  or 
believe  ;  and  that  I  will  well  and  truly  execute  the  same,  by  paying  first  the 
debts,  and  then  the  legacies  mentioned  therein,  as  far  as  his  goods  and  chattels 
will  thereunto  extend,  and  the  law  charge  me  ;  and  that  I  will  make  a  true 
and  perfect  inventory  of  all  such  goods  and  chattels,  rights  and  credits,  as 
may  come  to  my  hands  or  knowledge,  belonging  to  the  estate  of  said  deceased, 
and  render  a  fair  and  just  account  of  my  executorship,  when  thereunto  required 
by  law,  to  the  best  of  my  knowledge  and  ability.  So  help  me  God.(wz-) 

(Signed.)  A  B. 

This  oath  must  be  attached  to  and  form  a  part  of  the  probate. 

(TO)  §6,  R.  S.  1874,  p.  105. 


30  TESTATE   ESTATES.  [CH.   II. 

Probate  of  wills. 

The  bond  is  prescribed : 

7.  EXECUTOE'S  BOND. 

Know  all  men  by  these  presents,  that  we,  ,  of  the  county  of 

,  and  State  of  Illinois,  are  held  and  firmly  bound  unto  The  People 
of  the  State  of  Illinois  in  the  penal  sum  of  dollars,  current  money  of 

the  United  States,  which  payment  well  and  truly  to  be  made  and  performed, 
we,  and  each  of  us,  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly,  severally  and  firmly  by  these  presents. 

Witness  our  hands  and  seals,  this  day  of  ,  A.  D.  18        .* 

The  condition  of  the  above  obligation  is  such,  that  if  the  above  bounden 
,  execut        of  the  last  will  and  testament  of  ,  deceased, 

do  make  or  cause  to  be  made  a  true  and  perfect  inventory  of  all  and  singular 
the  goods  and  chattels,  rights  and  credits,  lands,  tenements  and  hereditaments, 
and  the  rents  and  profits  issuing  out  of  the  same,  of  the  said  deceased,  which 
have  or  shall  come  to  the  hands,  possession  or  knowledge  of  the  said  , 

or  into  the  possession  of  any  other  person  for  ,  and  the  same  so  made 

do  exhibit  in  the  county  court  for  the  said  county  of  ,  as  required  by 

law ;  and  also  make  and  render  a  fair  and  just  account  of  actings  and 

doings,  as  such  execut  ,  to  said  court,  when  thereunto  lawfully  required  ; 

and  do  well  and  truly  fulfill  the  duties  enjoined  on  in  and  by  the  said 

will ;  and  shall,  moreover,  pay  and  deliver  to  the  persons  entitled  thereto  all 
the  legacies  and  bequests  contained  in  said  will,  so  far  as  the  estate  of  the 
said  testator  will  thereunto  extend,  according  to  the  value  thereof,  and  as  the 
law  shall  charge  ,  and  shall,  in  general,  do  all  other  acts  which  may, 

from  time  to  time,  be  required  of  by  law,  then  this  obligation  to  be  void, 

otherwise  to  remain  in  full  force  and  virtue. 

[L.  B.1 
L.  8.1 
[L.  8.] 

The  bond  must  be  approved,  i.  e.,  the  securities  appear  in  person 
before  the  court,  are  examined  by  the  court  touching  their  responsi- 
bility, and,  if  approved,  the  approval  is  indorsed  on  the  bond ;  it  is 
then  filed  and  recorded,  (n) 

8.  THE  HEAEING  OE  EXAMINATION.  Excepting  in  the  case  of  a 
nuncupative  will,  it  is  not  customary  to  give  public  notice  of  the 
hearing  or  examination.  The  practice  prescribed  for  contesting  the 
probate,  is  the  bill  in  chancery,  or  an  appeal.(o)  The  statute 
provides,  first,  that  "  when  any  will,  testament  or  codicil  shall  be 
exhibited  in  the  county  court  for  probate  thereof,  as  aforesaid,  it 

(n)  §  7,  R .  S .  1874,  p .  105 .  hence  the  propriety,  if  not  the  neces- 

(o)  R.   S.   1874,  p.    1102.      Parties  sity,  of  notice.    Duncan  v.  Duncan,  23 

in  interest  may  contest  in  probate,  as  111.  364. 

well   as   in   chancery,   or   on   appeal, 


CH.  II.]  TESTATE   ESTATES.  31 

Probate  of  wills. 

shall  be  the  duty  of  the  court  to  receive  probate  of  the  same  without 
delay,  and  to  grant  letters  testamentary  thereon  to  thB  person  or 
persons  entitled,  and  to  do  all  other  needful  acts  to  enable  the  par- 
ties concerned  to  make  settlement  of  the  estate  at  as  early  a  day  as 
shall  be  consistent  with  the  rights  of  the  respective  persons  inter- 
ested therein." 

NOTICE.  Although  the  statute  prescribes  no  notice,  yet  notice 
should  be  given  by  citation  (p)  to  all  parties  interested  in  the  estate, 
of  the  time  of  the  hearing ;  and  before  proceeding  to  allow  or  dis- 
allow the  will,  there  should  be  ample  opportunity  for  all  to  be  heard. 
Within  three  years  after  the  date  of  the  probate,  a  bill  in  chancery 
may  be  filed  to  contest  the  validity  of  the  will.  An  appeal  may  also 
be  taken,  and  a  hearing  de  novo  had  in  the  circuit  court.( p)  Where 
there  is  no  contest,  to  satisfy  the  court  and  speed  the  proceedings, 
waiver  of  notice  may  and  should  be  given  by  indorsing  a  request 
upon  the  application : 

REQUEST  AND  WAIVER. 

The  undersigned,  being  all  parties  interested  in  the  within  petition,  hereby 
request  that  said  will  be  probated  without  further  notice. 

Dated  at  ,  this  day  of  ,  A.  D.  18 

A  B. 
C  D. 
E  F. 

In  case  the  parties  are  numerous,  non-resident  or  unknown,  it 
might  be  well  to  publish  a  citation,  as  prescribed  under  a  nuncupa- 
tive will.(g) 

(1.)  SUBSCRIBING  WITNESSES.  It  is  the  duty  of  the  subscribing 
witnesses  to  appear  under  prescribed  penalties,  and  testify  concern- 
ing the  execution  and  validity  of  the  will.  The  ordinarv  process  to 
bring  in  these  witnesses  is  the 

SUBPCENA. 

STATE  OP  ILLINOIS,  ) 
County  of  .  f  * 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  said  county,  greeting  : 

You  are  hereby  commanded  to  summon  O  P,  in  your  county,  to  appear  be- 
fore the  county  court  of  said  county,  at  the  court-house  in  said  county,  on  the 
day  of  ,  then  and  there  to  testify  the  truth  of,  and  concerning  the 

execution  and  validity  of,  the  last  will  and  testament  of  A  B,  deceased,  to 

(p)  See  page  47,  infra.  (q)  See  page  51,  infra. 


32  TESTATE   ESTATES.  [CH.  IL. 


Probate  of  wills. 


which  his  name  appears  as  a  subscribing  witness.  And  have  you  then  and 
there  this  writ. 

Witness,  ,  clerk  of  our  said  court,  and  the  seal  thereof,  at  ,. 

this        day  of  ,  A.  D.  18    .  ,  Clerk. 

[SEAL.] 

This  may  be  served  by  any  person  sui  juris,  by  reading  it  to  the 
witness.  One  day's  attendance  and  mileage  should  be  paid  to  the 
witness. 

If  the  witness  fails  or  refuses  to  attend,  on  proof  of  the  service  by 
affidavit : 

PROOF  OF  SERVICE. 

STATE  OF  ILLINOIS,  )      . 
Cook  County.         J 

L  M,  being  duly  sworn,  says  that  he  served  the  within  subpoena  upon  0  P 
therein  named,  by  reading  to  him  the  same  and  paying  (or  tendering  to)  him  in 
person,  at  ,  in  said  county,  on  the  day  of  ,  A.  D.  18 

the  sum  of  $    ,  for  his  attendance  and  mileage.  L  M. 

Subscribed  and  sworn  to  before  me,  this ) 
day  of  ,A.  D.  18     .  J 

,  Clerk. 
The  court  would  order  an 

(2.)  ATTACHMENT. 

(Caption.) 

Whereas,  the  probate  of  a  certain  instrument,  purporting  to  be  the  last  will 
and  testament  of  C  D,  late  of  0.,  in  said  county,  deceased,  is  now  pending  in 
the  county  court  of  county  ;  and  whereas,  it  has  been  made  to  appear 

that  0  P,  of  O.,  in  said  county,  has  been  duly  summoned  to  appear  before  our 
said  court  as  a  witness  in  said  proceedings,  and  has  been  paid  (or  tendered)  his 
legal  fees  therefor,  and  that  the  said  O  P  has  not  so  appeared,  and  has  thereby 
committed  a  contempt  of  this  court ;  now,  therefore,  you  are  hereby  com- 
manded to  take  the  body  of  the  said  O  P  (if  he  may  be  found  in  your  county) 
and  bring  him  forthwith  before  our  said  court,  to  answer  to  the  charge  of  con- 
tempt, and  also  to  give  evidence  of  what  he  knows  in  relation  to  the  execution 
of  said  will.  Hereof  fail  not,  and  make  due  return  of  this  writ  and  the  man- 
ner in  which  you  have  executed  the  same. 

[L.  s.]  (Teste.) 

RETURN. 

STATE  OF  ILLINOIS,  j 
County.  | 

I  have  this  day  arrested  the  within  named  0  P,  and  now  have  him  before 
the  said  court  as  within  directed.  T.  M.  B.,  Sheriff. 

By  G.  S.,  Deputy. 


CH.  II.]  TESTATE   ESTATES.  33 


Probate  of  wills. 


EXAMINATION"  OF  THE  WITNESSES.  On  the  day  appointed  or  set 
apart  for  the  hearing,  the  witnesses  being  in  attendance,  the  judge 
or  counsel  for  the  person  seeking  probate  of  the  will  propounds  the 
usual  interrogatories  :  What  is  your  name  ?  Is  this  your  signature  ? 
Where  do  you  live  ?  Did  you  sec  A  B  sign  his  name  to  this  instru- 
ment ?  Did  you  hear  him  acknowledge  this  name  to  be  his  signa- 
ture ?  Did  he  know  at  that  time  the  contents  of  this  instrument 
and  declare  it  to  be  his  last  will  and  testament  in  your  presence  and 
in  the  presence  of  all  the  persons  who  signed  this  instrument  ? 
Was  he  then  of  sound  mind  and  memory  ?  Did  you  sign  it  in  his 
presence  ?  Did  you  sign  it  at  his  request  or  by  his  consent  ? 
About  how  old  was  A  B  when  he  signed  or  acknowledged  said  will? 

It  must  satisfactorily  appear,  by  the  testimony  of  two  or  more 
credible  witnesses,  declaring  on  oath  or  affirmation,  in  open  court 
(1)  that  they  were  present  and  saw  the  deceased  sign  the  will  or  cod- 
icil in  their  presence,  or  acknowledged  the  same  to  be  his  free  act 
and  deed  ;  (2)  that  they  believed  the  testator  to  be  at  that  time  of 
sound  mind  and  memory.  The  witnesses  are  not  required  to  be  in 
the  presence  of  each  other  when  they  sign  their  names  ;(s)  so,  also, 
if  the  witnesses  to  a  will  are,  while  signing  their  names  to  it,  where 
the  testator  can  see  them  if  he  choose,  they  are  practically  in  his 
presence  within  the  meaning  of  the  statute,  (t) 

The  will  itself  must  be  in  writing,  and  signed  either  by  the  testa- 
tor or  by  some  person  in  the  testator's  presence,  by  the  testator's 
direction.  It  must  be  attested  by  two  or  more  credible  witnesses  ; 
i.  e.,  two  or  more  must  subscribe  it  as  witnesses. 

These  attesting  witnesses  are,  if  living,  to  be  called  to  prove  the 
will,  if  they  reside  in  the  county  where  the  will  is  to  be  proved ;  if 
they  reside  out  of  the  county  or  State  where  the  proceedings  are 
pending,  then  the  court  will,  on  the  suggestion  of  such  fact,  issue 
under  its  seal  a 

(3.)  DEDIMUS. 
STATE  OP  ILLINOIS,  ) 

County  of  .   ) 

The  People  of  the  State  of  Illinois,  to 

Whereas,  it  appears  to  us  that  ,  witness         ,  attesting  the  will  of 

,  deceased,  the  probate  of  which  will  is  now  depending  in  our  county 

court  of  county,  in  and  for  the  county  of  ,  aforesaid,  a*-d  that  the 

said  witness      reside  at  ,  aforesaid,  without  the  said  State  of  Illinois. 

and  that  person     attendance  cannot  be  procured  at  the  probate  of  said 

(*)  Flinn  v.  Owen,  58  111.  111.  (£)  Ambre  v.  Weiskaar,  74  111.  109. 


34  TESTATE   ESTATES.  [CH.   II. 


Probate  of  wills. 


will :  Now,  know  ye,  that  we,  in  confidence  of  your  prudence  and  fidelity, 
have  appointed  you  commissioner  to  examine  the  said  witness  ,  and  do  there- 
fore authorize  and  require  you  to  cause  the  said  witness  to  come  before  you, 
at  such  time  and  place  as  you  may  therefor  designate  and  appoint,  and  dili- 
gently to  examine  the  said  witness  ,  on  the  oath  or  affirmation  of  the  said 
witness  by  you  first  duly  in  that  behalf  administered,  and  faithfully  to  take 
and  certify  in  due  form  of  law  the  attestation  of  the  said  witness  to  said  will, 
which  is  herewith  inclosed  ;  and  the  same,  when  thus  taken,  together  with 
this  commission  and  the  said  will,  to  certify  into  our  said  county  court  of 

county  with  the  least  possible  delay. 

Witness,  ,  clerk  of  our  said  court,  and  seal'thereof  at  ,  in  said 

county,  this  day  of  ,  A.  D.  18 

,  Clerk. 

[SEAL.] 

From  the  probate  court  of  Cook  county  every  dedimus  is  accom- 
panied with  specific  instructions,  as  follows  : 

(4.)  INSTRUCTIONS. 
AS  TO  THE  MODE  OP  TAKING,  CERTIFYING  AND  RETURNING  DEPOSITIONS 

ACCORDING   TO   THE   STATUTE  LAWS   OF   ILLINOIS. 

[1.  Caption  to  the  deposition.] 

The  attestation  of  ,  of  the  county  of  and  State  (or  "  Territory  ") 

of  ,  a  witness  of  lawful  age,  produced,  sworn  and  examined,  upon  his 

corporal  oath,  on  the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  ,  at  the  office  (or  "  house  ")  of  ,  in  the  town  (or 

"  city  ")  of  ,  in  the  county  of  ,  and  State  (or  "  Territory  ")  aforesaid, 

by  me,  ,  a  commissioner  (or  "  by  us,"  if  more  than  one  commissioner, 

inserting  all  the  names  of  the  commissioners)  duly  appointed  by  a  dedim  »/.« 
potestatum  or  commission  issued  out  of  the  clerk's  office  of  the  county  court 
of  county,  in  the  State  of  Illinois,  bearing  teste  in  the  name  of  , 

Esq.,  clerk  of  the  said  county  court,  with  the  seal  of  the  said  court  affixed 
thereto,  and  to  me  (or  "  us,"  if  more  than  one)  directed  as  such  commissioner 
(or  "  commissioners  ")  for  the  examination  of  the  said  ,  a  witness  to  the 

will  of  ,  deceased,  the  probate  of  which  will  is  now  pending  and  undeter- 

mined in  the  said  county  court. 

The  said  ,  being  first  duly  sworn  by  me  (or  "  by  ,  one  of  the  said 

commissioners,  if  more  than  one)  as  a  witness  in  the  matter  of  the  probate  of 
said  will,  previous  to  the  commencement  of  his  examination,  to  testify  the 
truth  in  relation  to  said  will,  so  far  as  he  knew,  testified  and  deposed  as 
follows : 

(Here  insert  the  testimony  of  witness.) 

After  the  deposition  is  taken,  the  testimony  should  be  read  over 
to  the  witness,  and  if  he  assents  to  the  truth  of  the  testirnmy  as 


<JH.  II.  J  TESTATE   ESTATES.  35 


Probate  of  wills. 


written  down,  the  witness  will  then  sign  his  name  at  the  bottom  of 
the  deposition,  and  swear  to  the  truth  of  it  before  the  commissioner 
(or  "  before  one  of  the  commissioners,"  if  more  than  one).  This 
oath  is  in  addition  to  the  preliminary  oath  which  is  administered 
previous  to  the  commencement  of  his  examination. 

The  commissioner  should  then  certify  as  to  the  time,  place  and 
manner  of  taking  the  attestation,  as  follows : 

I,  ,  of  the  county  of  ,  and  State  (or  Territory)  of  ,  a  commis- 

sioner duly  appointed  to  take  the  attestation  of  the  said  ,  a  witness, 

whose  name  is  subscribed  to  the  foregoing  attestation,  do  hereby  certify  that, 
previous  to  the  commencement  of  the  examination  of  the  said  as  a 

witness  in  the  matter  of  the.  probate  of  the  annexed  will  of  ,  deceased, 

he  was  duly  sworn  by  me  as  such  commissioner  (or  "  by  ,  one  of  said 

commissioners,"  if  more  than  one),  to  testify  the  truth  in  relation  to  the  matter 
of  said  will,  so  far  as  he  knew  concerning  the  same ;  that  the1  said  attestation 
was  taken  at  my  office  (or  "  at  the  house  of  "),  in  the  city  (or  "  town  ")  of 

,  in  the  county  of  ,  and  State  (or  "  Territory  ")  of  ,  on  the 

day  of  ,  A.  D.  18        ;  and  that  after  said  attestation  was  taken  by  me  (or 

"  us  ")  as  aforesaid,  the  testimony  of  said  witness,  as  written  down,  was  read 
over  to  the  said  witness  ;  and  that  thereupon  the  same  was  signed  and  sworn 
to  by  the  said  witness  ,  before  me  (or  "  us  "),  the  oath  being  administered 

by  ;  one  of  the  said  commissioners  (where  there  are  more  than  one),  as 

such  commissioner,  at  the  place  and  on  the  day  and  year  last  aforesaid. 

(Signed)  ,  Commissioner. 

The  foregoing  certificate  of  the  commission  should  be  at  the  foot 
or  bottom  of  the  attestation,  immediately  following  the  signature  of 
the  witness. 

The  commissioner  should  then  fold  up  the  attestation  as  thus  taken 
and  certified,  together  with  the  commission,  and  inclose  the  whole 
in  a  suitable  wrapper  or  envelope,  and  then  seal  up  the  same  securely 
with  three  seals,  writing  his  name  transversely  across  the  middle  seal ; 
or,  if  two  commissioners,  they  will  each  write  their  names,  one  on 
each  of  the  outside  seals ;  or,  if  three  commissioners,  then  each  one 
will  write  his  name  across  one  of  the  seals  in  manner  aforesaid.  The 
commissioner  (or  commissioners)  will  also  indorse  the  proper  title  of 
the  proceeding  transversely  across  one  end  of  the  package  thus 
sealed  up,  according  to  the  proper  title  of  the  proceeding,  thus: 
"In  matter  of  the  probate  of  the  will  of  ,  deceased,"  and 

direct  the  same  to  the  proper  address  of  the  clerk,  who  may  have 
issued  the  commission,  and  transmit  the  same  by  mail  to  the 


36  TESTATE   ESTATES.  [CH.   II. 


Probate  of  wills. 


proper  post-office.  No  person,  or  the  attorneys  or  agents  of  any 
person,  at  all  interested  in  the  event  of  the  proceeding,  are  permitted 
by  law  to  dictate,  write  or  draw  up  any  part  of  the  attestation  required 
to  be  taken  as  aforesaid.  This  commission  issues  in  pursuance  of 
section  4  of  the  act  of  March  20,  1872,  of  the  general  assembly  of 
the  State  of  Illinois,  the  directions  and  provisions  of  which  are  to  be 
followed  in  the  execution  of  said  commission,  and  is  in  the  words  and 
figures  following : 

"  When  any  will,  testament  or  codicil  shall  be  produced  to  the 
county  court  for  probate  of  the  same,  and  any  witness  attesting  such 
will,  testament  or  codicil  shall  reside  without  the  limits  of  this  State 
or  the  county  in  which  such  will,  testament  or  codicil  is  produced 
for  probate,  or  shall  be  unable  to  attend  said  court,  it  shall  be  lawful 
for  the  county  court  to  issue  a  dedimus  potestatum  or  commission, 
annexed  to  such  will,  testament  or  codicil,  directed  to  some  judge, 
justice  of  the  peace,  mayor  or  other  chief  magistrate  of  the  city,  town, 
corporation  or  county  where  such  witness  may  be  found,  authorizing 
the  taking  and  certifying  of  his  or  her  attestation  in  due  form  of  law. 
And  if  the  person  to  whom  any  such  commission  shall  be  directed 
shall  certify,  in  the  manner  that  such  acts  are  usually  authenticated, 
that  the  witness  personally  appeared  before  him,  and  made  oath  or 
affirmation  that  the  testator  or  testatrix  signed  and  published  the 
writing  annexed  to  such  commission,  or  acknowledge  the  execution 
thereof,  as  his  or  her  last  will  and  testament,  or  that  some  other  person 
signed  the  testator's  name  by  his  or  her  direction ;  that  he  or  she 
was  of  sound  mind  and  memory,  and  that  said  witness  subscribed  his 
or  her  name  as  a  witness  thereto,  in  the  presence  of  the  testator  or 
testatrix,  and  at  his  or  her  request,  such  oath  or  affirmation  shall 
have  the  same  operation,  and  the  will  shall  be  admitted  to  probate  in 
like  manner  as  if  such  oath  or  affirmation  had  been  made  in  the  court 
from  whence  such  commission  issued." 

N.  B.  —  It  is  important  to  the  validity  of  the  attestation  that  these 
requirements  and  instructions  should  be  strictly  attended  to.  One 
caption  will  answer  for  the  attestations  of  several  witnesses,  where 
they  are  all  taken  at  the  same  time  and  place,  to  be  read  as  evidence 
in  the  same  suit,  by  so  modifying  the  form  here  given  as  to  make  it 
applicable  to  the  number  of  witnesses  to  be  examined ;  as,  for  instance, 
at  the  commencement,  say :  "  The  attestations  of  A  B,  C  D  and 
E  F,  of  the  county  of  and  State  of  ,  witnesses  of  law- 


OH.  II.  J  TESTATE   ESTATES.  •  37 

Probate  of  wills. 

ful  age,  produced,  sworn  and  examined  on  their  respective  corporal 
oaths,"  etc.,  and  then  in  the  latter  part  of  the  caption  say :  "  The 
said  A  B,  C  D,  and  E  F,  being  first  duly  sworn  by  me  as  witnesses 
in  the  said  matter/'  etc.  Then  at  the  commencement  of  each  attes- 
tation say :  "  The  said  A  B,  a  witness  produced  and  sworn  as  aforesaid, 
in  the  matter  of  the  probate  of  the  will  of  ,  deceased." 

The  attestation  should  then  be  read  over  to  the  witness,  and  signed 
and  sworn  to  by  him  before  the  next  witness  is  examined.  Then 
proceed  with  the  second  and  third  witnesses  in  like  manner  to  the 
end. 

One  certificate  as  to  the  time,  place  and  manner  of  taking  such 
attestation,  and  that  each  one  was  signed  and  sworn  to  by  such  wit- 
nesses respectively,  will  be  sufficient,  provided  due  care  be  taken  to 
insert  the  names  of  ALL  the  witnesses,  and  the  certificate  in  other 
respects  be  in  conformity  with  the  form  given  in  the  first  instance. 

Great  care  should  always  be  taken  to  attach  such  attestation 
firmly  together  by  means  of  tape  or  ribbon,  and  using  wax  or  wafers 
when  necessary. 

To  WHOM  THE  DEDIMUS  MAY  ISSUE.  This  dedimus  may  issue  to 
some  judge,  justice  of  the  peace,  mayor  or  other  chief  magistrate  of 
the  city,  town  or  corporation  or  county  where  such  witnesses  may  be 
found. 

How  OBTAINED.  File  an  affidavit  in  form  substantially  as  fol- 
fows: 

N°I8:lS8;    Bounty  court  of          county.    In  probate. 

In  the  matter  of  the  probate  of  1 
the  last  will  and  testament  of  > 
A  B,  deceased.  ) 

STATE  OF  ILLINOIS,  ) 
County  of  .  f  8i 

L  M,  being  duly  sworn,  says  that  0  P,  one  of  the  subscribing  witnesses  to 
the  said  will,  now  resides  at  the  city  of  New  York,  in  the  State  of  New  York. 
(Jurat.)  L  M. 

Under  the  statute  of  1872,  the  dedimus  is  to  be  annexed  to  the 
will,  testament  or  codicil,  directed  as  above  to  a  judge  or  magistrate, 
authorizing  the  taking  and  certifying  of  the  attestation  in  due  form 
of  law,£ 


(<)  §§  4, 7,  R.  S.  1874,  p.  1102. 


38  TESTATE   ESTATES.  [CH.  II. 


Probate  of  wills. 


Mr.  Jones  gives  a  short  form  for  the  dedimus(w),  with  the  pre- 
scribed certificates,  as  follows : 
(Venue.)  DEDIMTJS. 

The  People  of  the  State  of  Illinois :  To  J.  L.,  a  Justice  of  the  Peace  in  and  for 
county,  State  of  ,  greeting : 

Whereas,  the  annexed  last  will  and  testament  has  been  produced  to  the 
county  court  of  said  county  for  probate  thereof ;  and  it  is  suggested  that  0  P, 
one  of  the  subscribing  witnesses  to  the  same,  is  to  be  found  in  county 

and  State  of  ;  you  are,  therefore,  hereby  authorized  to  take  and  certify 

the  attestation  of  the  said  0  P,  if  to  be  found  in  your  county,  to  the  said  last 
will  and  testament  in  due  form  of  law,  and  to  make  return  thereof  to  this 
court. 

[L.  s.]  (Teste.) 

The  proof  required  by  the  foregoing  dedimus  must  be  in  one  of 
the  following  forms,  both  of  which  should  accompany  the  dedimus, 
as  an  instruction  to  the  commissioner. 

The  certificate  may  be  as  follows : 

No.  l. 

STATE  OP  , ) 

County  of  .  f  .* 

In  pursuance  of  the  authority  in  me  vested,  by  the  annexed  dedimus,  I,  this 
day,  caused  personally  to  come  before  me,  a  justice  of  the  peace  of  said 
county,  at  ,  in  said  county,  the  said  0  P,  who,  being  duly  sworn,  on  his 

oath,  did  say,  that  the  said  A  B  signed  and  published  the  writing  annexed  to 
said  dedimus  as  his  last  will  and  testament ;  that  the  said  testator,  at  the  time 
of  signing  and  publishing  the  same,  was  of  sound  mind  and  memory,  and  that 
the  said  0  P  subscribed  his  name  as  a  witness  thereto,  in  the  presence  of  the 
said  testator,  and  at  his  request.  J  L. 

Given  under  my  hand  and  seal,  this ) 
day  of  ,18    .  ) 

AB. 

Or  as  follows : 

No.  2. 

STATE  OF  , ) 

County  of          ,f  • 

In  pursuance  of  the  authority  in  me  vested,  by  the  annexed  dedimus,  I,  this 
day,  caused  personally  to  come  before  me,  a  justice  of  the  peace  of  said 
county,  the  said  0  P,  who,  after  being  duly  sworn,  on  his  oath,  did  say  that  he 
was  present  at  the  time  when  the  writing  annexed  to  said  dedimus  was 
signed  and  published  as  the  last  will  and  testament  of  the  said  A  B  ;  that  Mr. 
signed  the  name  of  the  said  A  B  thereto  by  the  direction  of  the  said  A 
B,  and  in  the  presence  of  the  said  O  P ;  that  the  said  A  B,  at  the  time  the  same 

(«)  Jones'  Forms,  pp.  343,  344. 


OH.  II.  |  TESTATE   ESTATES.  39 

Probate  of  wills. 

was  signed  and  published,  was  of  sound  mind  and  memory,  and  that  the  said 
O  P  subscribed  his  name  as  a  witness  thereto,  in  the  presence  of  the  said  tes- 
tator, and  at  his  request.  J  L. 
(Jurat.) 

Where  subscribing  witnesses'  depositions  are  wanted,  the  short 
forms  of  Mr.  Jones  are  to  the  point  and  applicable.  But  in  case 
such  subscribing  witnesses,  or  any  of  them,  die  or  remove  to  parts 
unknown  to  the  parties  concerned,  then  it  becomes  necessary  to  use 
the  general  form(^)  which  has  obtained  under  the  general  tatute 
of  evidence. (w) 

5.  PKACTICE.  Before  admitting  the  will  to  probate,  it  should 
affirmatively  appear  from  the  testimony  and  the  record  and  files  of 
the  court,  as  follows : 

(1.)  That  the  court  is  the  proper  court  to  receive  the  will. 

(2.)  That  the  testator  is  dead. 

(3.)  That  the  application  or  petition  is  in  form,  good  in  substance, 
and  properly  verified. 

(4.)  That  due  notice  of  the  hearing  has  been  given,  if  notice  has 
been  ordered  and  citations  issued ;  and  proper  proofs  of  service  and 
publication  must  be  filed.  The  returns  to  the  dedimus,  if  any,  must 
be  in  form,  etc. 

(5.)  Then  it  must  be  proved  beyond  a  doubt  that  the  instrument 
presented  and  under  consideration  is  the  last  will  and  testament  of 
the  decedent,  according  to  the  Statute  of  Wills. 

The  first  two  points  are  essential  to  jurisdiction,  for  if  the  court 
be  not  the  court  of  the  proper  county,  or  if  the  testator  be  not  yet 
dead,  the  court  has  no  jurisdiction. (a;)  The  third  and  fourth  points 
relate  to  the  practice,  which  we  have  endeavored  to  carefully  detail 
and  display.  If  the  petition  be  defective,  it  may,  then,  be  amended 
and  cured ;  if  sufficient  notice  has  not  been  given,  the  hearing  should 
be  continued  until  proper  notice  has  been  given.  If  the  depositions 
are  objectionable  or  insufficient,  they  may  be  retaken.  In  matters 
of  practice  of  this  nature  the  court  has,  by  the  statute,  a  large  dis- 
cretion^?/) "  To  do  all  other  needful  acts  "  covers  the  broadest  dis- 
cretionary power.  The  constitution  conferring,  as  we  have  seen,  (2) 
original  jurisdiction,  and  the  statute  power  to  do  all  other  needful 

(0)  See  pp.  33-37,  supra.  (x)  See  VENTTK,  page  14,  supra, 

(w')  2  Hill's  C.  L.,  Evidence,  p.  294 ;        (y)  §  7,  R.  S.  1874,  p.  1102. 
^  6,  R.  S.  1874,  p.  1102.  (z)  See  page  7,  supra. 


•±0  TESTATE   ESTATES.  [CH.  II. 

Probate  of  wills. 

acts,  the  scope  of  the  jurisdiction  is  as  broad  as  it  could  well  be 
made.  Hence,  we  have  added  the  resume  of  the  decisions  of  the 
supreme  court,  that  from  the  highest  stand-point  known  to  our  law, 
the  subject  before  us  may  be  carefully  studied,  and  the  probate  busi- 
ness be  continually  held  up  to  its  proper  place  and  dignity  alongside 
of  the  venerated  systems  of  chancery  and  common  law.  The  fifth 
point  is  the  all-important  consideration.  The  issue  is,  whether  or 
not  the  instrument  submitted  be  the  last  will  and  testament  of  the 
decedent?  If  yea,  the  will  should  be  received  and  probated.  If 
nay,  it  should  be  promptly  rejected. 

To  test  the  instrument,  the  requisites  of  a  will,  generally,  have 
already  been  considered. (a)  Now  comes  their  application.  The 
following  questions  must  all  be  answered  by  the  testimony  in  the 
affirmative,  to  prove  the  will : 

(1.)  Was  the  testator,  at  the  time  of  making  the  alleged  will,  a 
person  of  lawful  age  ? 

,  (2.)  Was  the  testator,  at  the  time  of  making  the  alleged  will,  "a 
person  of  sound  mind  and  memory  ?  " 

(3.)  Is  the  will  "  reduced  to  writing  ?  " 

(4.)  Was  it  signed  either  "  by  the  testator  or  by  some  person  in  his 
or  her  presence,  and  by  his  or  her  direction  ?  " 

(5.)  Was  it  attested  in  the  presence  of  the  testator  by  two  or  more 
credible  witnesses. 

(6.)  Had  the  testator,  at  the  time  of  his  decease,  a  mansion-house 
or  known  place  of  residence  in  this  county  ?  If  nay,  does  he  devise 
lauds  ?  If  yea,  are  they  or  any  of  them  in  this  county  ?  If  nay, 
did  he  die  in  this  county?  If  nay,  is  the  estate,  or  a  greater  part 
thereof,  in  this  county  ? 

To  solve  these  questions  takes  us  through  the  whole  range  of 
the  probate  of  the  will  on  the  merits,  brings  us  back  to  the  point 
of  departure  —  the  jurisdiction,  and  requires  a  careful  study  of  the 
statute  in  the  light  of  the  decisions.  We  will  now  examine  the 
adjudicated  cases. 

(1.)  PROOF  OF  WILLS.  On  an  appeal  from  an  order  of  the 
court  sitting  in  probate,  admitting  a  will  to  record,  a  party 
seeking  to  establish  a  will  must  prove  the  testator  was  of 
disposing  mind  and  memory  at  the  time  he  made  it,  and 
this  cannot  be  shown  merely  by  proof  that  he  was  so  at 
some  anterior  period.  And  in  such  case,  the  defendants  having 

(a)  See  page  17,  supra. 


CH.  II.  J  TESTATE   ESTATES.  41 

Probate  of  wills. 

put  in  evidence  the  testimony  of  the  subscribing  witnesses  to  the 
will,  given  when  it  was  admitted  to  probate,  it  then  devolved  upon 
the  plaintiff  to  show  the  incompetency  of  the  testator,  by  proof  suf- 
ficient to  overcome  the  prima  facie  case  made  through  the  testimony 
of  the  subscribing  witnesses.  It  is  no  objection  that  the  attesting 
witnesses  to  a  will  were  not  present  when  it  was  signed  by  the  testa- 
tor ;  provided  he  acknowledged  it  as  his  will  and  requested  them  to 
sign  as  witnesses.(c)  In  this  State  a  subscribing  witness  need  not 
know  that  he  has  been  attesting  the  execution  of  a  will,  the  statute 
not  requiring  any  declaration  or  publication. (d)  A  testator,  after 
signing  his  will,  called  the  subscribing  witnesses  into  the  room,  and 
after  causing  the  attestation  clause  to  be  read  to  them,  handed  them 
a  pen  with  which  they  signed  in  his  presence.  Held,  that  the 
acknowledgment  was  sufficient,  and  the  execution  valid.  Where 
one  of  the  subscribing  witnesses  to  a  will  testified  that  he  does  not 
know  whether  the  testator  was  of  sound  mind  or  not,  the  proof  of 
the  will  is  defective.(e)  In  this  State  evidence  is  admissible  in  pro- 
bate of  a  will,  by  one  of  the  subscribing  witnesses  that  the  testator 
either  signed  the  will  in  his  presence  or  acknowledged  his  signature 
to  him,  he  could  not  remember  which.(/) 

By  the  ordinance  of  1817,  but  two  of  the  subscribing  witnesses 
to  a  will  are  required  to  prove  it,  and  a  will  attested  by  three,  one 
to  whom  is  a  devisee  in  the  will,  is  valid.(^)  As  with  deeds,  so 
with  wills,  the  parties  making  them  cannot  invalidate  them  by 
their  own  parol  declarations  made  previously  or  subsequently,  and 
evidence  thereof  is  not  admissible  upon  the  issue  of  validity.(7i)  A 
will  written  on  the  same  sheet  as  a  codicil,  or  unmistakably  referred 
to  in  it,  is  proved  by  proof  of  the  codicil,  so  far  as  the  latter  does  not 
revoke  it.  Under  our  statute,  parties  in  interest  may  contest  a  will 
in  the  probate  court  as  well  as  in  chancery,  and,  therefore,  should  be 
allowed  to  cross-examine  the  attesting  witnesses  in  the  probate 
court.(i)  After  detailing  the  facts  on  which  an  opinion  is  based,  a 
witness,  not  an  expert,  may  express  that  opinion  to  the  jury,  as  to 
the  soundness  of  mind  of  a  testator.(/ ) 

(c)  Holloway  v.  Galloway,  51  111.  159.  (h)  Dickie  v.    Carter,  42    111.    376  ; 

(d)  Dickie  v.  Carter,  43  111.  376.  Rutherford  v.  Morris,  77  111.  397. 

(e)  Allison  v.  Allison,  46  111.  61.  (i)  Duncan  v.  Duncan,  23  111.  364  ; 
(/)  Broicnfield  v.  Brownfield,  43  111.  Wdfv.  Bollinger,  63  111.  368. 

147;  Fiinn  v.  Owen,  58  111.  111.  (j)  Roe  v.  Taylor,  45  111.  485. 

(g)  Ackless  v.  Seekright,  Breese,  46. 


42  TESTATE   ESTATES.  [CH.  II. 


Probate  of  wills. 


The  acquisition  of  lauds  confers  no  fixed  and  permanent  right 
for  au  individual  to  devise  them,  according  to  the  law,  at  the 
time  of  the  acquisition.  (/)  The  statute  of  wills  (Rev.  Stats.,  1845, 
p.  536,  §  1)  and  conveyances  (id.,  p.  102,  §  1),  enables  a  testator  to 
convey  by  will  after  acquired  lands  without  republication.  The 
only  question  is  of  intention,  (in)  Where  the  certificate  to  the  pro- 
bate of  a  will  in  a  foreign  State  shows  that  it  was  executed  and 
proved  according  to  the  laws  of  that  State,  and  such  certificate  is 
in  the  mode  required  by  our  statute,  it  is  admissible  in  evidence. 
And  it  is  no  objection  that  the  will  was  proved  by  only  one  of  the 
subscribing  witnesses,  when,  by  the  laws  of  the  State  where  such 
will  was  made,  but  one  witness  was  necessary  to  prove  its  execu- 
tion.^) A  will  not  properly  authenticated  is  not  admissible  as 
evidence  for  any  purpose,  (o)  Where  the  certificate  of  the  probate 
of  a  will,  made  in  another  State,  shows  that  the  will  was  duly 
executed  and  proved  agreeably  to  the  laws  and  usages  of  such  State, 
and  such  certificate  is  conformable  to  the  statute  of  this  State 
(Rev.  Stats.,  ch.  109,  §  8),  the  will  is  sufficiently  proved.  A  will 
executed  and  proved  in  another  State  need  not  be  filed  in  the  pro- 
bate court  of  this  State,  (p)  The  act  of  taking  proof  of  the  execu- 
tion of  a  will  is  a  ministerial,  and  not  a  judicial  act,  and  is  not  con- 
clusive of  the  validity  of  the  will ;  and  a  will  cannot  be  read  in 
evidence,  in  a  suit  of  ejectment,  which  was  admitted  to  probate 
upon  insufficient  proof,  (q) 

Where  a  testator  bequeaths  a  debt  due  him  to  a  legatee,  the  lega- 
tee cannot  resort  to  a  court  of  equity  for  its  recovery.(r)  Where  a 
will  directs  that  the  testator's  real  estate  may  be  disposed  of  by  his 
executor,  but  omits  to  appoint  any  executor,  an  administrator  with 
the  will  annexed  has  no  authority  to  sell  such  real  estate  under  the 
will.(s)  Under  the  statute,  on  appeal  from  the  decision  of  the 
probate  court,  in  relation  to  the  probate  of  a  will,  it  is  proper  for  the 
circuit  court  to  direct  the  trial  to  be  had  before  a  jury,  and  on  such 
trial  it  is  not  competent  for  either  party  to  introduce  any  testimony 
in  relation  to  the  sanity  of  the  testator,  except  that  of  the  subscrib- 
ing witnesses,  who  may  be  sworn  and  testify  before  a  jury  ;  and 

(Z)  Sturgis  v.  Swing,  18  111.  176.  (p)  tihepTiard  v.  Carriel,  19  111.  313 ; 

(m)  Peters  v.  Spittman,  18  111.  370.  and  see  2  Hill's  C.  L.  403. 

(ri)  Gardner  v.  Ladue,  47   111.211;  (q)  Furguson  v.  Hunter,  2  Gilm.  657. 

see  2  Hill's  C.  L.  403.  (r)  Doyle  v.  Murphy,  22  111.  502. 

(o)  Farrell  v.  Patterson,  43  111.  52.  (s)  Hall  v.  Irwin,  2  Gilm.  176. 


CH,  II.]  TESTATE   ESTATES.  43 


Probate  of  wills. 


unless  two  of  said  witnesses  concur  in  the  belief  that  the  testator 
was  of  sound  mind  at  the  time  of  executing  the  will,  it  cannot  be 
admitted  to  probate.  The  belief  of  the  witnesses  may  be  formed  not 
only  upon  what  transpired  at  the  time  of  executing  the  will,  but 
also  upon  events  which  happened  before  ;  and  the  jury  need  not 
inquire  into  the  foundation  of  the  witnesses'  belief,  nor  the  circum- 
stances under  which,  nor  the  time  when,  such  belief  was  formed. 
The  trial  in  the  circuit  court  should  be  de  now  ;  and  as  to  all  the 
questions,  except  the  sanity  of  the  testator,  the  parties  are  not 
restricted  to  the  testimony  of  the  subscribing  witnesses  or  the  evi- 
dence adduced  before  the  court  of  probate,  (t)  The  rule,  however, 
is  different  in  the  case  of  an  appeal  from  an  order  denying  the  pro- 
bate of  a  will.  The  party  seeking  its  probate  is  not  confined  to  the 
two  attesting  witnesses  to  establish  either  the  execution  of  the 
will,  or  the  sanity  of  the  testator.(w)  On  the  trial  of  an  issue  out 
of  chancery,  arising  under  the  Kevised  Statutes,  1845,  ch.  109, 
section  6,  the  burden  of  proof  is  on  the  party  affirming  the 
execution  and  validity  of  the  will,  and  he  has  the  right  to  open 
and  conclude  the  argument  of  the  cause.  Under  such  an  issue,  the 
party  holding  the  affirmative  is  bound  to  prove  that  the  contested 
paper  is  the  last  will  and  testament  of  the  testator. (v) 

On  trial  of  an  issue  of  fact  under  a  bill  to  impeach  a  will,  unless 
objected  to  when  offered,  the  original  affidavit,  required  by  the  sta- 
tute to  be  filed  in  the  county  court  in  proof  of  the  execution  of  the 
will,  may  be  read  to  the  jury  in  evidence  instead  of  a  certified  copy 
thereof,  (w)  Notwithstanding  the  probate,  the  issue  is  to  be  sub- 
mitted to  the  jury  as  a  new  and  original  question,  to  be  determined 
exclusively  upon  the  evidence  introduced  before  them.  The  trial  is 
de  novo,  and  without  regard  to  the  fact  that  the  instrument  has  been 
admitted  to  probate. (v)  The  certificate  of  the  oaths  of  the  attesting 
witnesses,  at  the  time  of  the  probate,  may  be  offered  in  evidence  by 
either  party  ;  but  it  is  to  receive  such  weight  only  as  the  jury  may 
think  it  deserves,  in  connection  with  the  other  proof  in  the  case. 
On  the  question  of  the  sanity  of  the  testator,  no  particular  quantum 
of  evidence  is  necessary  in  order  to  sustain  the  validity  of  the  will, 
upon  the  trial  of  an  issue  out  of  chancery,  under  the  statute  ;  but 

(t)  Gale's  Stat.  H8;Walker  v.  Walker,        (v)  Rigg  v.  Wilton,  13  111.  15. 
2  Scam.  291  ;  80  111.  469.  (w)  Potter  v.  Potter,  41  111.  80. 

(u)  Crowley  v.  Crowley,  80  111.  469. 


44  TESTATE   ESTATES.  [CH.  II. 


Probate  of  wills. 


the  jury  should  determine  the  facts  upon  the  weight  of  evidence  as 
in  other  cases.  It  is  not  essential  that  the  subscribing  witnesses 
should  be  called,  or  that,  when  called,  they  should  concur  in  their 
testimony ;  other  witnesses  may  be  examined,  even  to  contradict  the 
subscribing  witnesses.(w)  The  omission  to  name  a  child  in  a  last 
will  does  not,  of  itself,  prove  that  the  testator  was  incapacitated,  nor 
will  such  omission  destroy  its  validity.(z)  The  fact  that  a  testator 
had  been  insane  some  years  prior  to  the  execution  of  his  last  will, 
does  not  create  a  presumption  that  insanity  was  present  at  the  time 
of  the  publication  of  it ;  especially  where  it  is  shown  that,  after  a 
cure,  no  symptoms  of  a  return  of  the  malady  were  ever  manifested.^) 
A  contestant  of  a  will,  on  the  ground  of  insanity,  fraud  or  other 
cause,  has  the  burden  of  proof,  (y)  To  invalidate  a  will  on  the 
ground  of  fraud  or  compulsion,  it  must  be  of  such  a  character  as  to 
destroy  the  testator's  free  agency.(y)  Mere  honest  argument  or  per- 
suasion, and  such  influence  as  one  person  may  properly  obtain  over 
another,  are  insufficient  to  affect  the  validity  of  the  will.(z)  On  a 
bill  seeking  to  set  aside  a  will  on  the  ground  of  undue  influence, 
evidence  is  inadmissible  for  the  purpose  of  disproving  the  charge  of 
a  previous  will  which  has  been  canceled,  the  testamentary  disposition 
of  which  is  totally  variant  from  those  made  by  the  will  in  question. 
On  a  bill  seeking  to  set  aside  a  will  on  the  ground  of  undue  influ- 
ence, where  a  witness  has  expressed  a  decided  opinion  as  to  the 
mental  capacity  of  the  testator,  it  is  proper,  on  cross-examination,  to 
inquire  as  to  business  transactions  with  the  testator,  occurring  at 
about  the  time  his  opinion  of  the  mental  capacity  of  the  testator  had 
reference  to,  and  as  to  how  the  testator,  at  that  time,  conducted 
himself.  An  understanding  of  the  nature  of  the  business  about 
which  a  testator  is  engaged,  of  the  kind  and  value  of  the  property 
devised,  and  of  the  persons  who  are  the  natural  objects  of  his  bounty, 
and  of  the  manner  in  which  he  wished  to  dispose  of  his  property,  is 
evidence  of  the  possession  of  testamentary  capacity,  unless  the  tes- 
tator is  affected  with  some  morbid  or  insane  delusion  as  to  some  one 
of  those  natural  objects  of  his  bounty.(z)  See  NOTE,  p.  51. 

(2.)  THE  ACTS  OF  1872.    We  are  now  prepared  to  understandingly 
recapitulate  the  statutory  requirements. (a.) 

(w)  Rigg  v.  Wilton,  13  III.  15.  (z)  Eoe  v.  Taylor,  45  111.  485.. 

(x)  Snow  v.  Benton,  28  111.  306.  (a)  §§1,2,  R.  S.  1874,  p.  1101. 

(y)  Dickie  v.  Carter,  42  111.  376 ;  Eoe 
v.  Taylor,  45  id.  485. 


CH.  II.]  TESTATE   ESTATES.  45 

Probate  of  wills. 

OF  LAWFUL  AGE.    A  male,  21 ;  female,  18. 

OF  SOUND  MIND  AND  MEMOBY.  This  must  be  shown  by  the  fact 
that,  when  they  saw  the  will  made,  they  believed  the  testator  to  be  of 
sound  mind  and  memory.  If  there  be  any  doubt  on  this  point,  the 
questions  arising  would  require  considerations  involving  much  of 
medical  jurisprudence,  to  which  we  have  room  only  to  refer.(S) 

SEDUCED  TO  WRITING.  A  will  may  be  written  or  printed.  If 
written,  the  writing  may  be  in  ink  or  by  pencil. (c) 

SIGNED  BY  THE  TESTATOE  or  by  some  person  in  his  or  her  presence, 
and  by  his  or  her  direction.  The  signature  may  be  by  mark,  and  if 
so,  it  will  be  presumed  that  the  testator  could  not  write  his  name  in 
fulL(rf) 

If  signed  by  some  other  person,  it  must  have  been  in  the  name 
and  presence  of  the  testator,  at  the  express  request  of  the  testator,  in 
the  presence  of  at  least  two  of  the  subscribing  witnesses ;  a  silent 
assent  of  the  testator  is  not  sufficient,  (e)  • 

The  court  must,  upon  the  whole,  be  satisfied  that  the  testator  was 
fully  apprised  of  its  contents ;  and  knew  and  intended  the  instru- 
ment to  be  his  will.(e) 

ATTESTED  IN  THE  PRESENCE  OF  THE  TESTATOK.(/)  Credible  wit- 
nesses^), i.  e.,  competent  witnesses  before  a  jury. 

WHEN  THE  COUNTY  JUDGE  is  A  WITNESS;  HIS  TESTIMONY,  HOW 

TAKEN. 

In  all  cases  where  a  county  judge,  or  such  other  person  as  may  be 
authorized  by  law  to  grant  probate  of  wills  and  testaments,  may  and 
shall  have  become  a  witness  to  any  will  or  testament  which  is  required 
by  law  to  be  proved  before  him  as  such  county  judge  or  person 
authorized  to  grant  probate,  as  aforesaid,  and  the  testimony  of  such 
witness  is  necessary  to  the  proof  of  the  same,  then,  and  in  such  case, 
it  shall  be  his  duty  to  go  before  the  circuit  court  of  the  county  in 
which  such  will  is  to  be  admitted  to  record,  and  make  proof  of  the 
execution  of  the  same,  in  the  same  manner  that  probate  of  wills  is 
required  to  be  made  in  other  cases.  And  it  shall  be  the  duty  of  the 
clerk  of  the  circuit  court  aforesaid,  forthwith  to  certify  such  will, 

(&)  1  Redf .  ch.  3,  and  cases  and  works  (e)  Id.,  207 ;  42  111.  376 ;  note  (n),  p. 

tited.  47,  infra, 

(e)  Id.,  p.  165.  (/)  4  Kent's  Com.  514  (6). 

(d)  Id.,  p.  205.  07)  Jones  v.  Larrdbee,  47  Me.  474. 


46  TESTATE   ESTATES.  [CH.  II 


Probate  of  wills. 


proven  as  aforesaid,  to  the  county  court  of  the  county ;  and  said  will 
shall  thereupon  have  the  same  force  and  effect  that  it  would  have 
had  if  it  had  been  proven  by  one  credible  witness  before  the  county 
court ;  and,  if  there  are  other  witnesses  to  said  will,  the  county  court 
shall  take  their  evidence  in  support  of  said  will,  as  in  other  cases. (i) 

ATTESTING  CKEDITOK.  If  any  lands,  tenements  or  hereditaments 
shall  be  charged  with  any  debt  or  debts,  by  any  will,  testament  or 
codicil,  and  the  creditor  whose  debt  is  so  secured  shall  attest  the 
execution  of  the  same,  such  creditor  shall,  notwithstanding,  be 
admitted  as  a  witness  to  the  execution  thereof.(y) 

We  now  turn  to  the  record. 

Mr.  Jones  gives  forms  for  certificates  of  the  proof  of  wills,  which 
seem  eminently  proper  as  certificates  of  evidence  in  such  matters 
when  the  will  is  proved  in  common  form,  i.  e.,  not  contested  in 
probate.  (&) 
STATE  OF  J^INOIS,  j.  gg     County  CQUrt  of         wurdy     In  proba^ 

In  the  matter  of  the  last  will  and  | 
testament  of  A  B,  deceased.        ) 

At  a  regular  term  of  said  court  for  probate  business,  and  on  the  day  of 

,  A.  D.  18  ,  personally  appeared  before  me,  J.  S.,  judge  of  said  court, 
the  above-named  O.  P.  and  G.  R.,  two  credible  witnesses,  who,  being  duly 
sworn,  on  their  oaths  depose  and  say  that  *  they  were  present  and  saw  the 
above-named  A  B  sign  the  above  last  will  and  testament  in  their  presence  ; 
that  they  believed,  and  still  believe,  that  the  said  A  B'was  of  sound  mind  and 
memory  at  the  time  of  signing  the  same  ;  and  that  they  attested  the  signing 
of  said  last  will  and  testament,  in  the  presence  and  by  the  request  of  the  said 
A  B,  and  in  presence  of  each  other. 

P        -i          In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
seal  of  said  court,  this  day  of  ,  A.  D.  18 

J.  S.,  County  judge,  etc.(l) 

If  the  will  was  not  signed  by  the  deceased  himself,  but  by  some 
person  for  him,  at  his  request,  and  acknowledged  by  him,  then  the 
proof  will  be  as  follows : 

(The  certificate  should  'be  as  before  to  the  *,  then  as  follows:) 
they  were  present  at  the  signing  of  the  above  will,  and  that  the  said  A  B 
directed  Mr.  to  sign  the  same  for  him  ;  and  the  same  being  signed  in  his 

presence,  was  acknowledged  by  the  said  A  B  to  be  his  own  act  and  deed  ;  and 
that  they  then  believed,  and  still  believe,  that  the  said  testator,  at  the  time  of 

(i)  §  5,  R.  S.  1874,  p.  1102.  by  the  judge,  and  not  the  clerk,  the 

O)l20,  R.  S.  1874,  p.  1105.  probate  being  a  j udicial  act.  (Compare 

(A;)  Jones'  Forms,  pp.  341,  343.  Ferguson  v.  Hunter,  2  Gilm.  657,  with 

(0  This  certificate  should  be  signed  §  2,  R.  S.  1874,  p.  1101.) 


CH.  II. J 


TESTATE   ESTATES. 


47 


Probate  of  wills. 


acknowledging  the  same,  was  of  sound  mind  and  memory  ;  and  that  they 
attested  the  acknowledging  of  the  said  last  will  and  testament,  in  the  presence 
and  by  the  request  of  the  said  A  B,  and  in  the  presence  of  each  other. 

'  [L.   S.] 

(Teste,  as  above.) 

The  certificate  (or  certificates  if  there  be  more  than  one)  should 
be  attached  to  the  will  and  recorded  as  a  part  of  it.(m)  These  cer- 
tificates are  like  the  certificates  of  evidence  used  here  in  chancery,  (n) 
Whenever  the  subscribing  witnesses  appear  in  court,  they  may  be 
examined,  and,  if  parties  in  interest  desire,  cross-examined,  and  their 
testimony  rebutted(w)  and  certificates  made ;  the  hearing,  however, 
may  take  place  at  some  subsequent  time,  upon  this  evidence  and 


(ra)|2,R.  S.  1874,  p.  1101. 

(n)  Hill's  Ch.  Pr.,  Hearing  and  De- 
cree, p.  307.  To  entitle  a  will  to  pro- 
bate four  things  must  concur : 

1.  It  must  be  in  writing  and  signed 
by  the  testator,  or  in  his  or  her  pres- 
ence by  some  one   under  his  or  her 
dictation. 

2.  It  must  be  attested   by  two  or 
more  credible  witnesses. 

3.  Two  witnesses  must  prove  that 
they  saw  the  testator  or  testatrix  sign 
the  will  in  their  presence,  or  that  he 
or  she  acknowledged  the  same  to  be  his 
or  her  free  act  and  deed  ;  and 

4.  They  must  swear  that  they  be- 
lieve the  testator  or  testatrix  to  be  of 
sound  mind  and  memory  at  the  time 
of    signing    and    acknowledging    the 
same.      Allison  v.  Allison  46  111.  61  ; 
Dickie  v.  Carter,  42  id.  376;  80  id.  469. 

In  Dickie  v.  Carter,  the  heirs  con- 
tested the  will  in  the  county  court, 
and  it  was  there  rejected ;  Carter  ap- 
pealed ;  a  jury  trial  was  had,  to  whom 
the  question,  "  Is  this  the  will  of 

(the  testator),  or  not?"  was  sub- 
mitted. The  jury  found  in  the  affirm- 
ative ;  judgment  was  entered  a.ccord- 
ingly ;  a  writ  of  error  was  sued  out 
and  the  judgment  was  affirmed.  See 
3  Redf.  Wills,  2d  ed.  pp.  40,  41. 

The   proviso   of  §  2  of  the  act  of 


March,  1872  (R.  S.  1874,  p.  1101).  pre- 
scribes that  the  probate  shall  be  good 
and  available  in  law  for  granting,  con- 
veying and  assuring  the  lands,  tene- 
ments, hereditaments,  annuities,  rents, 
goods  and  chattels  therein  and  there- 
by devised,  granted  and  bequeathed." 
But  in  Ferguson  v.  Hunter*  2  Gilm. 
(5-17,  where  a  will  was  proved  in  com- 
mon form,  i.  e.,  without  notice  to  the 
parties  interested,  the  probate  was 
held  to  be  a  ministerial  act,  and  sub- 
ject to  inquiry  in  collateral  action. 
Ackless  v.  Seekright,  Breese,  46. 

In  Duncan  v.  Duncan,  23  111.  364,  it 
was  held  that  our  statute  (and  it  is  not 
in  this  respect  changed  by  the  acts  of 
1872)  contemplated  the  contesting  of 
the  will  in  the  county  court  as  well  as 
in  chancery.  We  have  already  sug- 
gested the  propriety  of  notice  to  the 
parties  interested  on  the  part  of  the 
executor  or  others  seeking  the  pro- 
bate of  the  will.  If  the  heirs  have 
the  right  to  be  heard  they  certainly 
should  be  notified,  especially  where 
titles  to  real  property  may  be  called 
in  question ;  and  the  will  thus,  in  the 
first  instance,  be  proved  in  solemn 
form,  i.  e.,  on  notice  to  the  parties  in- 
terested. See  Ferguson  v.  Hunter, 
supra;  3  Redf.  Wills,  27,  30.* 


*  We  have  read  the  case  of  Ferguson  v.  Hunter,  again  and  again,  and  compared  it 
with  recent  statutes,  and  tried  to  reconcile  it  with  the  authorities.  We  are  prone  tc 
think  that  the  word  ministerial  was  used  without  th'e  consideration  usually  bestowed 
by  the  learned  judge  who  gives  the  opinion.  Is  not  the  probate  of  a  will  a  judicial 
act?  See  2  Phil.  Ev.  76. 


48  TESTATE   ESTATES.  [CH.  II. 


Probate  of  wills. 


other  proofs  and  the  files  of  the  court.  The  order  is  made  in  the 
nature  of  a  judgment. 

If  any  of  the  proof  should  be  taken  under  a  dedimus,  the  county 
judge  may  indorse  upon  the  deposition  a  certificate : 

Received  in  evidence  this        day  of  ,  A.  D.  18    .  J.  S., 

County  judge,  etc. 

9.  PROOF  OF  THE  EXECUTION"  OF  A  WILL,  AND  THE  RECORD. 

In  the  matter  of   the  estate ) 
of  John  Doe,  deceased.(o)    j 

On  this  day  comes  A  B,  of  said  county,  and  produces  to  the  court  an  instru- 
ment in  writing,  purporting  to  be  the  last  will  and  testament  of  John  Doe, 
deceased,  and  attested  by  C  D,  E  F  and  J  K,  as  witnesses  ;  and  the  said  A  B 
prays  that  said  instrument  in  writing  be  admitted  to  record  as  the  last  will  and 
testament  of  the  said  John  Doe. 

And  it  appearing  to  the  court  by  the  evidence  of  said  A  B,  that  said  John 
Doe,  late  of  said  county  of  ,  died  on  or  about  the  day  of  ,  18  > 

at  the  said  county,  the  court  proceeded  to  hear  the  proof  of  the  execution  of 
said  instrument  in  writing. 

And  thereupon  come  C  D  and  E  F,  two  of  the  said  attesting  witnesses,  who, 
being  first  duly  sworn,  say,  respectively,  that  they  were  well  acquainted  with 
John  Doe,  late  of  said  county,  deceased,  in  his  life-time.  The  instrument  in 
writing  so  produced  by  said  A  B,  purporting  to  be  the  last  will  and  testament 
of  said  John  Doe,  being  shown  them,  they  each  further  say  that  they  were 
present  at  the  execution  of  said  will,  and  saw  the  said  John  Doe  sign  it  on  the 
day  of  the  date  thereof,  and  heard  said  John  Doe  say  then  and  there  that  said 
instrument  in  writing  was  his  last  will  and  testament ;  that  they  subscribed 
their  names  as  witnesses  thereto,  at  the  request  of  the  said  John  Doe,  in  his 
presence  and  in  the  presence  of  each  other,  and  that  they  respectively  be- 
lieve that  the  said  John  Doe  was  then  of  sound  mind  and  memory,  and  com- 
petent to  make  a  will. 

(If  the  probate  be  in  solemn  form,  or  contested,  add,  "  and  the  said  wit- 
nesses having  also  been  cross-examined  by  X  T,  of  counsel  for  C  D,  E  F, 
G  H,  parties  interested  in  the  estate  of  said  A  B,  and  proofs  as  follows : 
(Here  set  out  all  testimony  in  rebuttal)  by  the  said  C  D,  E  F  and  G  H,  having 
also  been  adduced.") 

And  now  the  court  being  sufficiently  advised  by  the  evidence  of  said  attest- 
ing witnesses,  of  the  proper  and  legal  execution  of  the  said  will,  it  is 

ORDERED  and  adjudged,  That  said  instrument  in  writing  be  considered 
proven,  and  be  admitted  to  record  as  the  last  will  and  testament  of  said  John 
Doe,  deceased. 

This  day  also  appears  A  B,  named  in  said  last  will  and  testatemt  of  said  Joha 

(0)  After  the   probate  of   the  will,    at  page  37,  supra  ;  see  Probate  Record, 
this  title  should  be  used  in  all  proceed-    infra. 
ings  ;  before  this  the  title  should  be  as 


CH.   II.  J  TESTATE   ESTATES.  49 


Probate  of  wills. 


Doe,  deceased,  as  the  executor  thereof,  and  prays  that  the  court  issue  to  him 
letters  testamentary  as  said  executor;  and  the  court  being  now  sufficiently 
advised  touching  the  same,  it  is 

ORDERED,  That  letters  testamentary  issue  to  the  said  A  B,  as  such  executor, 
upon  his  entering  into  bond  in  the  penal  sum  of  dollars,  conditioned  and 

payable  as  the  law  requires. 

And  now  again  comes  the  said  A  B,  and  presents  to  the  court  his  bond  as 
executor,  etc.,  with  L  M  and  0  P  as  his  securities  thereon ;  and  the  court  being 
advised  concerning  said  bond  and  securities,  it  is 

ORDERED,  That  the  same  be  approved,  which  bond  is  in  the  words  and  fig- 
ures as  follows:  (Here  set  out  the  bond  in  full.)  And  the  said  A  B,  having 
taken  his  oath  of  office  as  such  executor,  which  oath  is  in  the  words  and  fig- 
ures as  follows :  (Here  set  out  the  oath  in  full.')  it  is 

ORDERED,  That  letters  testamentary  do  now  issue  to  him,  which  letters  are 
in  words  and  figures  as  follows :  (Here  set  out  the  letters  in  futt) ;  and  it  is 
further 

ORDERED,  That  (L  M,  0  P  and  Q  R)  be  appointed  appraisers  of  the  said 
estate. 

This  record  is  to  be  made  by  the  clerk  from  time  to  time  as  the  proceedings 
are  progressing.  The  first  order  is,  that  the  will  be  admitted  to  record.  If  it 
be  rejected,  the  probate  record,  of  course,  is  at  an  end. 

When  a  will  has  been  duly  proved  and  allowed,  the  county  court 
shall  issue  letters  testamentary  thereon  to  the  executor  named  in 
such  will,  if  he  is  legally  competent  and  accepts  the  trust,  and  gives 
bonds  to  discharge  the  same ;  and  when  there  is  no  executor  named 
in  such  will,  or  the  executor  named  therein  dies,  refuses  to  act,  or  is 
otherwise  disqualified,  the  court  shall  commit  the  administration  of 
the  estate  unto  the  widow,  surviving  husband,  next  of  kin  or 
creditor,  the  same  as  if  the  testator  had  died  intestate.  In  all  cases 
copies  of  the  will  shall  go  out  with  the  letters.(j^) 

10.  The  form  of  the  letters  to  be  issued  upon  the  probate  is  pre- 
scribed as  follows : 

LETTERS  TESTAMENTARY^^) 

STATE  OP  ILLINOIS,) 
County  of  .     J  M 

The  People  of  the  State  of  Illinois,  to  all  to  whom  these  presents  shall  come, 
greeting : 

Know  ye,  that  whereas  ,  late  of  the  county  of  ,  and  State  of 

Illinois,  died  on  or  about  the  day  of  ,  A.  D.  18      ,  as  it  is  said,  after 

having  duly  made  and  published          last  will  and  testament,  a  copy  whereof  ia 

(p)  §  1,  R.  S.  1874,  p.  104.  (?)  §  10,  R.  S.  1874,  p.  106. 

7 


50  TESTATE   ESTATES.  [CH.  II. 


Probate  of  wills. 


hereunto  annexed,  leaving  at  the  time  of  death  property  in  this  State, 

which  may  be  lost,  destroyed  or  diminished  in  value  if  speedy  care  be  not 
taken  of  the  same  ;  and  inasmuch  as  it  appears  that  ha  been  appointed 

execut  in  and  by  the  said  last  will  and  testament,  to  execute  the  same ;  and 
to  the  end  that  the  said  property  may  be  preserved  for  those  who  shall  appear 
to  have  legal  right  or  interest  therein,  and  that  said  will  may  be  executed 
according  to  the  request  of  the  said  testa  ,  we  do  hereby  authorize  , 

the  said  ,  as  such  execut      ,  to  collect  and  secure  all  and  singular  the 

goods  and  chattels,  rights  and  credits  which  were  of  the  said  at  the  time 

of  decease,  in  whosesoever  hands  or  possession  the  same  may  be  found 

in  this  State  ;  and  well  and  truly  to  perform  and  fulfill  all  such  duties  as  may 
be  enjoined  upon  by  the  said  will,  so  far  as  there  shall  be  property,  and 

the  law  charge  ,  and,  in  general,  to  do  and  perform  all  other  acts  which 

are  now,  or  hereafter  may  be,  required  of  by  law. 

Witness,  ,  clerk  of  the  county  court  of  said  county,  and  the  seal  thereof, 
at  the  court-house,  in  the  of  ,  in  said  county,  this  day  of  , 

A.  D.  18 

,  Clerk. 

They  are  usually  certified  : 

CERTIFICATE  OP  THE  CLERK. 

STATE  OP  ILLINOIS,  ) 

County  of  .  f  ss 

I,  ,  clerk  of  the  county  court  of  county,  in  the  State  aforesaid, 

do  hereby  certify  that  the  within  is  a  true  and  correct  copy  of  the  letters  tes- 
tamentary issued  to  ,  now  in  force,  and  now  of  record  in  my  office. 

In  witness  whereof  I  have  hereunto  set  my  hand,  and  the  seal  of  said  county 
court,  this  day  of  ,  A.  D.  18  . 

[L.  s.]  ,  Clerk. 

And  competent  evidence  of  the  appointment  and  confirmation  of  the 
executor. 

This  completes  the  record  of  the  proceedings ;  armed  now  with  his 
letters  and  a  certified  copy  of  the  will  and  its  probate,  the  executor 
is  prepared  to  study  and  learn  his  duties,  and  ascertain  and  exercise 
his  powers. 

11.  NUNCUPATIVE  WILL.  (1.)  If  the  application  be  for  letters  tes- 
tamentary upon  the  admission  to  probate  of  a  nuncupative  will,  the 
heirs  and  legal  representatives  of  the  testator  must  be  cited  if  they 
reside  within  the  county,  or  notified  if  they  live  without,  by  adver- 
tisement^) As  the  statute  of  wills  does  not  prescribe  the  length 

(r)  Coth.  Ann'd.  Stats.,  1539, §  16. 


CH.  II.]  TESTATE    ESTATES.  51 


Probate  of  wills. 


of  time  during  which  the  notice  be  published,  in  the  event  that 
publication  is  necessary,  reference  must  be  had  to  an  act  to  revise 
the  law  in  relation  to  notices,  passed  February  13,  1874,  and  which 
took  effect  July  1  of  that  year.  By  section  3  of  that  act  it  is 
provided  "whenever  notice  is  required  by  law  or  order  of  court 
and  the  number  of  publications  is  not  specified,  it  shall  be 
intended  that  the  same  be  published  for  three  successive  weeks.' 
By  section  4  the  publication  may  be  in  a  weekly  newspaper,  and,  by  sec- 
tion 5,  ;i  proper  newspaper  is  defined  to  be  a  secular  newspaper  of  gen- 
em!  circulation,  published  in  the  city,  town  or  county,  or  some  paper 
especially  authorized  to  publish  legal  notices  in  the  city,  town  or 
county.  The  publication  may  be  proved  by  producing  the  certifi- 
cate of  the  publisher,  by  himself  or  his  authorized  agent,  with  a 
written  or  printed  copy  of  the  notice  annexed,  stating  the  number 
of  times  which  the  same  shall  have  been  published,  and  the  dates 
of  the  first  and  last  papers  containing  the  same,  (s) 

The  following  may  be  used  as  both  a  notice  and  a  citation: 

(2.)  NOTICE  TO  HEIRS  AND  LEGAL  REPRESENTATIVES  OP  TESTATOR,  OR  TESTA- 
TRIX, OF  THE  ISSUING  OF  LETTERS  TESTAMENTARY,  ON  A  NUNCUPATIVE 
WILL. 

STATE  OF  ILLINOIS,  )          In  court  of  county,  of  the  term, 

County  of  .  \  M  A.  D.  18     . 

TJie  People  of  the  State  of  Illinois,  to  A  B,G  D,  E  F  and  G  H,  heirs  and  legal 
representatives  of  J  K,  deceased: 

Take  notice  that  a  nuncupative  will  of  the  said  J  K  Las  been  duly  proven 
and  recorded  in  said  court,  and  that  letters  testamentary  will  be  granted  thereon 
to  It  M,  on.  the  day  of  ,  A.  D.  18  ,  unless  sufficient  cause  be  shown  to 
the  contrary.  You,  and  each  of  you,  are,  therefore,  hereby  cited  and  notified 
to  appear  before  said  court,  to  be  holden  on  the  day  and  year  aforesaid,  at  the 
court-house  in  ,  in  said  county,  to  show  cause,  if  any  you  have,  why 

such  letters  should  not  be  granted  to  the  said  L  M. 

[i,  s.] 


NOTE.  —  1.  Old  age  and  disease  are  not  to  be  treated  as  an  absence 
of  sanity.  These  are  not  of  themselves  sufficient  to  incapacitate 
a  party  from  making  a  valid  disposition  of  his  property  by  will, 
when  no  undue  influence  is  practiced.  Even  softening  of  the  brain, 
two  years  prior  to  the  making  of  the  will,  will  not  invalidate  it,  it' 

(*)  Coth.  Ann'd.  Stats.,  1009. 


52  TESTATE    ESTATES.  [CH.  II. 


Probate  of  \Vills. 


the  testator  at  the  time  of  making  it  was  capable  of  transacting  his 
ordinary  affairs.(tf)  It  is  not  required  that  a  person,  to  make  a 
valid  will,  shall  possess  a  higher  capacity  than  for  the  transaction 
of  the  ordinary  affairs  of  life.(w)  The  testator  need  not  have  suffi- 
cient mental  capacity  to  understand  and  know  the  extent  of  his 
property,  who  his  relations  are  and  their  claims  on  his  bounty,  and 
how  he  wishes  to  dispose  of  his  property,  and  also  sufficient  capacity 
to  hold  all  these  things  in  his  mind  at  the  same  time,  (u)  If  the  mind 
and  memory  of  the  testator  are  sufficiently  sound  to  enable  him  to 
know  and  understand  the  business  in  which  he  is  engaged  at  the 
time  of  executing  his  will,  then  within  the  statute,  he  is  of  sound 
mind  and  memory.(v)  The  rule  is  that  a  person  who  is  capable  of 
transacting  business  is  also  capable  of  making  a  valid  will;  it  is  the 
same  in  the  case  of  a  sale  of  property  and  its  disposition  by  will- 
The  usual  test  is,  that  the  party  be  capable  of  acting  rationally  in 
the  affairs  of  life.  The  derangement  or  imbecility  that  incapaci- 
tates is  of  that  character  which  renders  him  incapable  of  under- 
standing the  effect  and  consequences  of  his  acts;  it  need  not  be  a  total 
obliteration  of  the  mental  faculties  which  prevents  a  party  from 
reasoning  correctly  on  all  subjects,  upon  correct  premises  to  arrive 
at  correct  conclusions,  but  it  is  that  want  of  capacity  which  pre- 
vents a  person  reasoning  correctly  and  from  understanding  the  rela- 
tion of  cause  and  effect  in  ordinary  business  affairs.(w) 

2.  Fraud  or  undue  influence,  to  avoid  a  will,  must  be  directly 
connected  with  its  execution.  The  fact  that  a  testator  was  influ- 
enced by  the  devisee,  in  the  ordinary  affairs  of  life,  does  not  show 
that  the  latter  used  undue  influence  in  procuring  the  execution  of 
a  will  subsequently  made.(a;)  It  is  not  unlawful  for  a  man,  by 
honest  advice  or  persuasion,  to  induce  a  person  to  make  a  will,  or  to 
influence  the  disposition  of  his  property  by  will;  such  advice  or 
persuasion  will  not  vitiate  a  will  made  freely.(y)  The  influence 
exercised  over  a  testator  to  avoid  his  will,  must  be  of  such  a  nature 
as  to  deprive  him  of  free  agency  and  render  his  act  more  the  off- 
spring of  the  will  of  others  than  his  own,  and  it  must  be  specially 
directed  toward  the  object  of  procuring  a  will  in  favor  of  particular 
parties,  and  must  be  still  operating  at  the  time  the  will  is  made. 

(t)  Rutherford  v.  Morris,  77  111.  397.        (w)  Meeker  v.  Meeker,  75  111.  269. 
(u)  Carpenter  v.  Calvert,  83  111.  63.  (x)  Rutherford  v.  Morris,  11  111.  397. 

(v)  yoe  v.  McCord,  74  111.  33.  (y)  Toe  v.  McCord,  74  111.  33. 


CH.  II. J  TESTATE   ESTATES.  53 


Executors. 


Influence  and  persuasion  may  be  fairly  used,  and  a  will  procured  by 
honest  means,  by  acts  of  kindness,  attention  and  persuasion,  which 
delicate  minds  would  shrink  from,  will  not  be  set  aside  on  that 
ground  alone.  The  influence,  to  vitiate  the  will,  must  not  be  the 
influence  of  affection  or  attachment. (z) 

12.  LOST  WILL.  No  provision  is  made  in  the  statute  for  the 
proof  of  a  lost  will  in  probate,  but  if  known  to  exist  the  lost  will 
may  be  proved.  The  question  is  not  only  one  of  evidence  but  also 
of  jurisdiction.  The  proper  jurisdiction,  it  seems,  in  such  cases  is 
iii  chancery,  (a)  The  proceeding  similar  to  that  prescribed  for  the 
restoration  of  lost  deeds,  by  the  statute  of  records. (b) 


SECTION'  III. —  EXECUTORS. 

I.  Competency  and  appointment. 
II.  Powers  and  duties. 
III.  Renunciation,  resignation  and  removal. 

I.  COMPETENCY  AND  APPOINTMENT. 

1.  "Who  may  be  executors. 

2.  Appointment  of  a  debtor  as  executor. 

3.  Afemme  couverte  may  be. 

4.  A  corporation. 

1.  WHO  MAY  BE  EXECUTORS.  An  executor  is  one  appointed  by  a 
testator  (and  whose  appointment  is  confirmed  by  the  proper  court) 
to  execute  his  will  and  to  represent  him  in  his  personal  rights  and 
liabilities  left  at  his  death.  Persons  of  the  age  of  seventeen 
years,  of  sound  mind  and  memory,  may  be  appointed  executors;  but 
when  a  person  appointed  executor  is,  at  the  time  of  proving  the  will, 
under  the  age  of  twenty-one  years,  or  of  unsound  mind,  or  con- 
victed of  any  crime  rendering  him  infamous,  administration  with 
the  will  annexed  may  be  granted  during  his  minority  or  other  dis- 
ability, unless  there  is  another  executor  who  accepts  the  trust,  in 
which  case  the  estate  shall  be  administered  by  such  other  executor 
until  the  minor  arrives  at  full  age  or  the  other  disability  is  removed, 

(z)  Rutherford  v.  Morris,  77  111.  397;  Redf.  Wills,  6,  7  ;  but  see  Duncan  v. 
Alimon  v.  Pigg,  82  111.  149.  Duncan,  23  111.  364. 

(a)  See   Hill's   Chan.   Pr  ,  p.  646  ;  3        (6)  Goth.  Ann'd.  Stats.,  1202  et  seq. 


54  TESTATE    ESTATES.  [CH.  II. 


Executors. 


when,  upon  giving  bond  as  in  other  cases,  he  may  be  admitted  as 
joint  executor  with  the  former.  When  a  married  woman  is  execu- 
trix her  husband  may  give  bond  with  her  for  her  faithful  perform- 
ance of  the  trust  as  in  other  cases,  (c) 

When  a  will  has  been  duly  proved  and  allosved,  the  county  court 
shall  issue  letters  testamentary  thereon  to  the  executor  named  in 
such  will,  if  he  is  legally  competent  and  accepts  the  trust,  and  gives 
bond  to  discharge  the  same,  unless  by  the  request  of  testator  and 
approval  of  the  court,  the  giving  of  surety  be  waived  ;  and  when 
there  is  no  executor  named  in  such  will,  or  the  executor  named 
therein  dies,  refuses  to  act,  or  is  otherwise  disqualified,  the  court 
shall  commit  the  administration  of  the  estate  unto  the  widow,  sur- 
viving husband,  next  of  kin  or  creditor,  the  same  as  if  the  testator 
had  died  intestate.  In  all  cases  copies  of  the  will  shall  go  out  with 
the  letters.(d) 

2.  APPOINTMENT  OF  A  DEBTOR  AS  EXECUTOR.     In  no  case  here- 
after, within  this  State,  where  any  testator  or  testatrix  shall,  by  his 
or  her  will,  appoint  his  or  her  debtor  to  be  his  or  her  executor  or 
executrix,  shall  such  appointment  operate  as  a  release  or  extinguish- 
ment of  any  debt  due  from  snch  executor  or  executrix  to  such  testa- 
tor or  testatrix  ;  unless  the  testator  or  testatrix  shall,  in  such  will, 
expressly  declare  his  or  her  intention  to  devise,  bequeath  or  release 
such  debt ;  nor  even  in  that  case,  unless  the  estate  of  such  testator 
or  testatrix  is  sufficient  to  discharge  the  whole  of  his  or  her  just  debts 
over  and  above  the  debt  due  from  such  executor  or  executrix.(e) 

3.  A  MARRIED  WOMAN  may  be,  if  her  husband  consents,  and 
will  unite  with  her  in  the  bond,  with  securities  for  her  faithful  per- 
formance as  such,  executrix.(/ ) 

4.  A  CORPORATION  AGGREGATE,  it  has  been  said,  in  England,  (</) 
may  be  entitled  to  be  executor  ;  but  the  authorities  are  the  other  way 
in  America.     Corporations  can  exercise  only  such  powers  as  are 
expressly  conferred  on  them,  and  such  implied  powers  as  are  neces- 
sary to  enable  them  to  perform  their  prescribed  duties  ;    they  have 
none  of  the  elements  of  sovereignty  and  having  no  soul  cannot  com- 
mit perjury. 

Those  who  are  not  of  sound  mind  and  memory  are  incapable  ;  as 
idiots,  infants  under  the  age  of  seventeen,  and  persons  convicted 
of  any  infamous  crime.  What  are  infamous  crimes  is  declared  by 
section  279  of  the  Criminal  Code.(A) 

II.  POWERS  AND  DUTIES. 

1.  The  authority.  4.  Their  principal  duties. 

2.  How  appointed.  5.  Distinction  between  their  duties 

3.  Executor  de  son  tort.  and  those  of  administrators. 

(c)  §  3,  R.  S.  1874,  p.  104.  S.  1874,  p.  104  ;  2  Bl.  Com.  503. 

(d)  fc  I,  H.  S.  1874,  p.  104.  (g)  Tol.  Ex.  3  ;  3  Bac.  Abr.  5. 

(e)  §  19,  R.  S.  1874, p.  1105.  (h)  §  279,  R.  S.  1874,  p.   394  ;  Coth- 
(0  Cothran's  Stats.,  48,  §  a  ;  §  3,  R.  ran's  Statutes,  p.  507. 


CH.  II.]  TESTATE    ESTATES.  55 


Executors. 


1.  THE  AUTHORITY  of  an  executor  is  grounded  upon  the  will 
and  may  be  express  or  implied  ;  absolute  or  qualified  ;  exclusive, 
or  in  common  with  others. 

2.  How   APPOINTED.     He  may   be  expressly  nominated,  either 
by  a  written  or  nuncupative  will.     He  may  be  constructively  ap- 
pointed, merely  by  the  testator's  recommending  or  committing  to 
him  the  discharge  of  those  duties  which  it  is  the  province  of  an 
executor  to  perform,  only  conferring  on  him  those  rights  which 
properly  belong  to  the  office,  or  any  other  means  from  which  the 
testator's  intention  to  invest  him  with  that  character  may  be  dis- 
tinctly inferred. 

His  appointment  is  absolute,  where  he  is  constituted  certainly, 
immediately,  and  without  any  restriction  or  limitation  ;  it  is  quali- 
fied where  his  duties  are  limited  to  a  restricted  time,  or  to  certain 
of  the  testator's  property. 

3.  As  EXECUTOR  DE  sox  TORT  (in  his  own  wrong)  is  one  who, 
without  lawful  authority,  undertakes  to  act  as  executor  of  a  person 
deceased.     A  very  slight  circumstance  will  render  a  man  executor 
de  son  tort,  as  where  a  man  receives  a  debt  of  the  deceased,  or  gives 
an  acquittance  for  it.     He  is  liable  to  all  the  trouble  of  an  executor- 
ship,  with  none  of  the  profit  or  advantage.     Merely  doing  acts   of 
necessity  or  humanity,  as  locking  up  the  goods  or   burying  the 
corpse  of   the  deceased,  will  not  amount  to  such  an  intermeddling 
as  will  charge  a  man  as  executor  of  his  own  wrong.(t) 

But  where  there  is  a  rightful  executor  or  administrator,  there  can 
be  no  executor  of  this  description.  The  doctrine  relating  to  execu- 
tors in  their  own  wrong  applies  to  chattels  only. 

4.  DUTIES  OF  EXECUTORS.  In  the  performance  of  his  duties,  he  is 
required  to  act  in  good  faith,  and  to  use  due  diligence. 

His  principal  duties  are  the  following  : 

First,  To  bury  the  testator  in  a  manner  suitable  to  the  estate  he 
leaves  behind  him. 

Second.  To  collect  the  goods  of  the  deceased. 

Third.  To  prove  the  will  in  a  proper  office,  before  the  proper 
officer  appointed  by  law. 

Fourth.  To  make  an  inventory  of  all  the  goods  and  chattels 
which  come  to  his  hands  and,  under  our  statute,  of  the  real  estate 
of  the  testator,  and  return  the  same  into  the  county  or  probate 
court  which  approved  his  appointment,  within  three  months  from 
the  date  of  his  testamentary  letters,  as  Avell  as  to  make  such 
supplementary  inventories,  from  time  to  time,  as  other  assets  or 
liabilities  of  the  testator  may  come  to  his  knowledge. 

Fifth.  To  ascertain  the  state  of  the  debts  and  credits  of  the  estate, 
and  endeavor  to  collect  the  claims  with  as  little  delay  as  possible, 
consistently  with  the  interest  of  the  estate. 

Sixth.  To  reduce  all  the  goods  not  specifically  bequeathed,  into 

(i)  1  Wms.  on  Exec.  210  et  seq. 


5(j  TESTATE   ESTATES.  [CH.   II. 

Executors. 

Seventh.  To  pay  the  debts  of  the  testator  and  the  legacies  be- 
queathed by  him,  in  the  order  required  by  law. 

Under  our  statute  of  wills,  the  power  of  the  executor  over  the 
testator's  estate,  before  the  probate  of  the  will,  extends  simply  to  the 
burial  of  the  deceased,  the  payment  of  necessary  funeral  expenses, 
and  the  taking  care  and  preservation  of  the  estate,  (d) 

When  the  letters  testamentary  issue,  the  executor's  authority  over 
the  estate  relates  back  to  the  death  of  the  deceased.  His  right  to 
act  generally,  from  the  time  of  the  testator's -decease,  is  suspended 
until  he  complies  with  the  law  in  producing  the  will,  having  it  pro- 
bated, and  qualifies,  (d) 

He  is  to  give  bond,  the  same  as  an  administrator,  for  the  faithful 
performance  of  his  duties,  unless  the  will  itself  dispense  with 
security;  even  then,  if  persons  interested  in  the  estate  suspect  fraud, 
or  the  court  see  cause,  or  the  estate  be  insolvent,  he  will  be  required 
to  give  such  bond.  The  suspicion  of  the  creditors  or  legatees,  under 
such  circumstances,  should  be  reasonable,  not  mere  caprice. 

The  duties  of  an  executor,  AFTEE  LETTERS  TESTAMENTARY  have 
been  granted  to  him,  are  identical  with  those  of  an  administrator,  in 
making  the  inventory,  appraisement  bill,  account,  setting  apart  to 
the  widow  her  specific  property,  and  settling  up  the  estate  before 
distribution.  The  law  may  be  said  to  take  possession  of  the  goods, 
chattels,  rights  and  credits,  and  the  real  estate  of  a  person,  as  soon 
as  he  dies,  whether  he  be  testator  or  intestate,  and  to  hold  the  estate 
for  the  purpose  of  paying  his  debts ;  hence,  the  mode  of  settling  up 
the  estate,  so  far  as  the  creditors  are  concerned,  is  the  same,  whether 
the  person  invested  with  the  trust  for  such  purpose  be  nominated 
executor  by  the  will  of  the  deceased,  or  appointed  administrator  by 
the  county  court.  No  disposition  that  the  testator  may  make  of  his 
property  by  will  can  affect  the  rights  of  creditors. 

5.  THE  DISTINCTION  between  the  duties  of  an  executor  and  an 
administrator  is  this :  After  the  administrator  has  made  a  complete 

(d)  POWEB  BEFORE  PROBATE.     The  qualifies,  he  shall  not  be  liable  as  an 

power  of  the  executor  over  the  testa-  executor  of    his   own   wrong,  unless 

tor's  estate,  before  probate  of  the  will  upon  refusal  to  deliver  up  the  estate 

and    obtaining    letters    testamentary,  to  the  person  authorized  to  receive  the 

shall  extend  to  the  burial  of  the  de-  same.    Provided,  that  this  section  shall 

ceased,    the    payment    of    necessary  not  be  construed  to  exempt  any  person 

funeral  charges,  and  the  taking  care  of  claiming  to  be  executor  as  aforesaid, 

the  estate ;  but  in  all  such  cases,  if  the  for  any  waste  or  misapplication  of  such 

will  is  rejected  when  presented  for  pro-  estate.     Sec.  4,  R.  S.  1874,  p.  104. 
oate,  and  such  executor  thereby  never 


CH.  II.]  TESTATE   ESTATES.  57 


Executors. 


settlement  of  all  the  debts  due  creditors  of  the  estate,  the  surplus  of 
the  intestate's  property  is  distributed  among  his  heirs,  according  to 
the  laws  of  descent,  while,  under  a  will,  it  goes  in  the  direction 
desired  by  the  testator.  The  executor  looks  to  the  will,  the  adminis- 
trator to  the  law  of  descent,  to  ascertain  his  duties  and  powers.  The 
will  is  consulted  in  the  one  case,  the  statute  in  the  other. 

All  the  law,  instructions  and  precedents,  therefore,  concerning 
administrators,  from  the  time  of  their  appointment  up  to  the  time 
of  distribution,  which  will  be  given  in  the  next  chapter,  are  equally 
applicable  to  executors.  The  forms  there  given  may  be  used  for  an 
executor,  by  substituting  for  the*  words  "  administrator,"  etc.,  the 
words  "  executor  of  the  last  will  and  testament  of."  By  reference  to 
the  synopsis  of  the  statutes  given  in  the  appendix,  the  executor  can 
readily  see  where  his  duties  and  those  of  an  administrator  are  iden- 
tical. This  chapter  contains  only  such  matters  as  are  peculiarly  or 
exclusively  applicable  to  executors. 

III.  —  RENUNCIATION,  RESIGNATION   AND    REMOVAL. 

1.  Renunciation. 

2.  Form  of. 

3.  Record  of. 

4.  Resignation. 

5.  Removal. 

6.  Superseding,  petition  for. 

7.  Revocation  of  letters  testamentary. 

1.  RENUNCIATION  OF  EXECUTORS.  If  a  person  named  in  a  will 
as  executor  be  unwilling  to  act  in  that  capacity,  he  may  refuse  by  so 
declaring  in  writing,  and  having  the  same  filed  in  the  proper  court. 
The  following  form  may  be  used  for  this  purpose : 

2.  FORM  OF  RENUNCIATION  OF  EXECUTORSHIP. 

STATE  OP  ILLINOIS,  )  County  Court  of  County, 

County.  \  *  Term,  A.  D.  18     . 

To  the  Hon.  ,  Judge  of  said  Court : 

The  undersigned  herewith  presents  to  the  court  a  paper  writing,  purporting 
to  be  the  last  will  and  testament  of  ,  who  died  at  the  county  aforesaid, 

the  same  being  his  place  of  residence,  on  the        day  of  last,  in  which 

paid  will  the  undersigned  is  nominated  and  appointed  executor  thereof.  He 
hereby  wholly  refuses  to  accept  the  executorship  thereof,  and  renounces  all 
right  and  claim  to  the  exercise  of  the  duties  of  executor  of  the  same.  He 
further  states  that  he  has  not  intermeddled  with  the  effects  of  the  testator 
since  his  decease,  nor  in  any  manner  acted  as  executor  of  the  said  will. 
Dated  ,  18  .  RICHARD  ROE. 

8 


58  TESTATE   ESTATES.  [CH.  II. 


Executors. 


A  verbal  declaration  is  not  sufficient,  but,  to.  give  validity  to  the 
renunciation,  it  must  be  solemnly  entered  and  recorded.(e) 

3.  THE  FACT  OF  RENUNCIATION  SHOULD  APPEAK  OF  RECORD,  in 
order  to  give  validity  to  the  appointment  of  an  administrator  with 
the  will  annexed.    Such  an  appointment  is,  in  the  supposed  cases, 
based  upon  the  renunciation.     Taking  possession  and  selling  part  of 
the  personal  estate  of  the  testator,  and  paying  some  of  the  debts,  are 
proof  of  his  election  to  act,  and  renders  a  person  chargeable  as  exec- 
utor^/) 

If  there  be  several  executors,  they  must  all  renounce  before  admin- 
istration can  be  granted.  If  the  administration  be  committed  be- 
fore refusal,  it  will  be  void.*  If  several  executors  are  appointed 
and  one  or  more  of  them  die  before  letters  issue,  or  renounce  or 
become  disqualified,  letters  issue  to  the  survivor,  willing  to  under- 
take the  trust. 

4.  RESIGNATION  OF  EXECUTORS.     An  executor  may  resign  the 
expcutorship  in  the  same  manner  as  an  administrator. 

5.  REMOVAL  OF  EXECUTORS.    If  any  person  named  as  executor  or 
executrix  in  any  last  will  and  testament  is,  at  the  time  when  admin- 
istration ought  to  be  granted,  under  the  age  of  seventeen  years,  or 
of  unsound  mind,  or  convicted  of  any  crime  rendering  him  or  her 
infamous,  or  shall  be  a  married  woman,  letters  of  administration  or 
testamentary  (as  the  case  may  require)  may  be  granted  in  the  same 
manner  as  if  such  person  had  not  been  named  as  executor  in  such 
will ;  unless,  in  the  case  of  the  married  woman,  her  husband  shall 
give  bond  with  her,  etc.:  Under  such  circumstances,  the  appoint- 
ment under  the  will  is  superseded  by  an  appointment  of  the  court. 
The  person  not  being  capable  of  the  office,  the  nomination  in  the 
will  is,  in  effect,  a  blank.     But  the  person  named  is  presumed  to 
be  competent  until  the  contrary  is  made  to  appear ;  therefore,  there 
should  be  some   judicial  proceedings  before  the  person  named  is 
superseded  by  an  appointment  of  an  administrator  with  the  will 
annexed.     The  court  should  be  advised  by  competent  evidence  that 
the  person  is  disqualified  from  some  cause  mentioned  in  the  statute, 
and  when  so  advised  the  consideration  of  the  court  thereon  should  be 
made  a  matter  of  record,  so  that  the  subsequent  appointment  of  an 
administrator  will  be  authorized  and  legal.     The  widow,  next  of  kin, 

(e)  Toll.  Ex.  40 :  3  Redf.  on  Wills,  11  (/)  Van  Horn  v.  Fonda,  5  Johns. 
(n).  Ch.  388. 

*But  see  g  5,  R.  S.  1874,  p.  10-5. 


CH.  II.]  TESTATE   ESTATES.  59 

Executors. 

or  other  person  interested  in  the  estate  should  bring  the  question 
before  the  court,  by  petition,  affidavit  or  suggestion,  and  the  person 
represented  to  be  disqualified  should  be  cited  to  show  cause  why  let- 
ters of  administration,  with  the  will  annexed,  should  not  be  granted. 
The  notice  to  the  executor  should  be  reasonable,  so  that  he  may 
have  an  opportunity  to  contest  the  question  of  disqualification. 
The  petition  may  be  in  the  following  form : 

6.  PETITION  TO  SUPEESEDE  THE  APPOINTMENT  OF  AN  EXECUTOE. 

STATE  OF  , )  '  County  Court  of  county.   In  Probate. 

County.     \ss- 
To  Hon.  0  D,  Judge  of  said  Court  : 

The  petition  of  A  B,  of  said  county,  respectfully  represents,  that  she  is  the 
widow  of  C  B,  late  of  said  county,  deceased.     That  said  C  B  died  on  the 
day  of  ,  18    ,  having  made  and  published  his  last  will  and  testament. 

That  said  C  B  died  seized  of  a  large  estate,  consisting  of  real  and  personal 
property  of  the  value  of  ten  thousand  dollars,  as  your  petitioner  believes,  all  of 
which  is  disposed  of  by  said  last  will  and  testament,  after  the  payment  of  all 
just  debts  of  said  testator.  That  the  said  estate  is  owing  large  sums  of  money 
to  divers  persons,  the  amount  of  which  your  petitioner  does  not  know,  but 
believes  it  to  be  two  thousand  dollars. 

And  your  petitioner  further  represents,  that  in  and  by  said  last  will  and  testa- 
ment, one  E  F,  of  said  county,  is  appointed  executor  thereof.  That  t,aid  E  F 
was,  at  the  term  of  the  circuit  court  of  said  county,  held  in  ,  A.  D. 

18  ,  convicted  of  the  crime  of  burglary,  and  sentenced  to  imprisonment  and 
hard  labor  in  the  penitentiary  for  two  years,  and  served  the  said  term  (or  is  of 
unsound  mind,  stating  how  unsound,  or  is  under  the  age  of  seventeen  years,  or 
is  a  married  woman,  giving  the  name  of  her  husband,  as  the  case  may  be.) 
Wherefore,  your  petitioner  shows  that  the  said  E  F  is  incapable  of  qualifying 
as  such  executor. 

Therefore,  in  consideration  of  the  premises,  your  petitioner  prays  that  she 
may  be  appointed  administratrix  of  the  estate  of  said  C  B,  with  the  will 
annexed,  and  that  a  citation  may  issue  herein,  requiring  said  E  F  to  appear 
in  this  court  at  the  next  term  thereof,  and  show  cause,  if  any  he  has,  why 

such  letters  of  administration  should  not  be  granted. 

And  your  petitioner  will  ever  pray,  etc.  A  B. 

Dated,  this  day  of  ,  A.  D.  18 

STATE  OP  J  ., 

County,      \  S" 

A  B,  the  petitioner  above  named,  being  first  duly  sworn,  says,  that  the  mat 
ters  and  things  in  the  foregoing  petition  stated  are  true  of  her  own  knowledge 

AB. 

Subscribed  and  sworn  to  this  first ) 
day  of          ,  A.  D.  18     .  y 

J  K,  County  Clerk. 


6U  TESTATE   ESTATES.  [CH.   1). 

Executors. 

The  petition  should  specify  the  facts  which  show  that  the  executor 
named  in  the  will  is  disqualified,  in  order  that  he  may  be  advised 
particularly  of  what  is  charged  against  him,  so  that  he  can,  accord- 
ingly, prepare  his  defense.  It  would  be  insufficient  to  say  that 
he  was  convicted  of  an  infamous  crime,  without  further  stating  what 
such  crime  was,  and  when  and  where  he  was  convicted. 

The  testator  selects  whom  he  desires  to  execute  his  will,  and  his 
appointment  should  not  be  overruled,  unless  the  person  whom  he 
has  selected  be,  in  law,  clearly  incompetent.  Therefore  the  evidence 
should  be  certain  and  convincing  before  the  court  should  disregard 
the  appointment  of  the  testator.  If,  upon  hearing  the  evidence,  the 
court  consider  the  person  named  as  executor  in  the  will,  disqualified, 
it  should  be  so  entered  of  record,  as  a  foundation  for  granting  let- 
ters of  administration  with  the  will  annexed. 

7.  KEVOCATION.  It  is  provided  that  the  county  court  shall 
have  power  to  revoke  all  letters  testamentary  or  of  administration, 
granted  to  persons  who  shall  become  insane,  lunatic  or  of  unsound 
mind,  habitual  drunkards,  who  may  be  convicted  of  any  infamous 
crime,  who  waste  or  mismanage  the  estate,  or  who  conduct  them- 
selves in  such  a  manner  as  to  endanger  their  co-executors  or  securi- 
ties. The  proceedings  and  precedents  necessary  under  this  section 
to  revoke  the  letters  of  an  executor,  are  substantially  the  same  as 
those  applicable  to  administrators,  (h) 

(h)  See  p.  100,  infra. 


CH.   III.J  INTESTATE   ESTATES.  61 

Introduction. 


CHAPTEK  III. 

INTESTATE   ESTATES. 
SECTION  I.  Introduction. 

II.  Appointment  of  administrators. 

III.  Their  powers  and  duties  generally. 

IV.  Resignation  and  removal. 


SECTION    I.  —  INTRODUCTION. 

1.  Estates  generally. 

2.  Priority  of  the  rights  of  creditors. 

3.  Testate  estates  and  intestate  estates  distinguished. 

4.  Administration  of  estates. 

1.  ESTATES  consist  of  real  and  personal  property.(a) 

2.  ALL  JUST  DEBTS  AND  CLAIMS(£)  against  estates  left  by  deced- 
ents, if  enforced  within  a  reasonable  time,  take  precedence  of  lega- 
cies,^) devises,  and  the  rights  of  legatees,  devisees  or  distributees(rf) 
and  their  alienees  or  assigns. (e) 

3.  TESTATE  ESTATES  pass  by  will ;  they  are  the  estates  of  deceased 
testators  which  we  term  testate  estates. (/) 

INTESTATE  ESTATES  consist  of  the  real  and  personal  property  of 
resident  and  non-resident  proprietors  dying  intestate.(^) 

THEY  DESCEND  and  are  distributed,  while  testate  estates  are  dis- 
posed of  according  to  legacies  and  devises.  All  these  estates  fall,  on 
the  death  of  their  proprietors,  under  the  administration  of  the 
proper  court  in  probate.  For  the  purposes  of  administration  of 
testate  estates,  where  there  is  no  executor,  the  court  appoints  one, 
and  then  the  testate  estate  is  in  its  management  and  control  through 
an  administrator  cum  testamento  annexo  or  de  bonisnon,  deemed  an 
intestate  estate  ;  but  the  legacies,  devises  and  provisions  of  the  will 
are  paramount  rules  in  their  disposition. 

THE  LAW  OF  DESCENT(/i)  may  bo  regarded  as  the  PUBLIC  WILL 
for  the  distribution  of  estates,  after  paying  all  just  debts  and  claims 
of  creditors,  among  the  relatives  of  the  decedent ;  while  the  LAW  OF 

(a)  Bl.  Com. ;  Washburn'a  Real  Prop.;  (e)  Meyer  v.  McDougal,  47  111.  278  ; 

art  in  regard  to  descent  of  property  ;  §  1,  It.  S.  1874,  p.  417  ;  Hill's  Ch.  Pr. 

R.  S.  1874,  p.  417.  513.  Cotliran's  Statutes,  p.  541. 

(//)  See  page  215,  infra.  (/)  See  pp.  10-60,  supra. 

(c)  See  page  233,  infra.  (<7)  See  page  1.  supra. 

(d)  See  page  251,  infra.  (h)  See  chap,  x,  infra. 


INTESTATE   ESTATES. 


[CH.  III. 


Introduction. 


WILLS  provides  for  the  disposition  of  his  property,  after  death,  by 
the  will  of  the  proprietor,  indicated,  while  living,  in  a  formal  man- 
ner, in  an  instrument  termed  a  will. 

4.  ADMINISTRATION  OF  ESTATES.  Death  comes  to  all.  The 
instant  it  comes  to  the  proprietor  of  either  real  or  personal  property, 
the  probate  jurisdiction  begins;*  the  authority  of  the  proper  judge 


*Acting  upon  this  doctrine,  the  su- 
preme court  of  the  United  States  hold 
all  proceedings  to  sell  lands  of  a  de- 
ceased person  in  probate  to  be  solely 
in  rem.  Qrignon  v.  Astor,  2  How. 
319.  The  preliminaries  to  the  sale 
are  not  to  be  collaterally  attacked. 
The  supreme  court  of  Illinois  hold 
that  such  proceedings  are  partially  in 
rem  and  partially  in  personam.  Bots- 
ford  v.  0' Conner,  57  111.  72.  But  if 
the  creditors  have  a  prior  lien  upon 
the  estate  in  administration,  how  are 
heirs  or  devisees  to  take  the  property 
discharged  of  this  lien  ?  Until  credi- 
tors are  paid,  the  property  is  in  custo- 
dia  legis  by  the  statute,  according  to 
innumerable  decisions. 

Then,  if  we  assume  that  a  proceed- 
ing to  subject  the  real  property  of  an 
intestate  to  the  payment  of  his  debts 
is  partly  in  personam  and  partly  in 
rem,  are  we  not  begging  the  question  ? 
For,  does  not  the  estate,  at  the  death 
of  its  proprietor,  pass  through  the  pro- 
bate jurisdiction?  Have  not  all  the 
world  notice  of  the  attaching  and  prov 
ince  of  this  jurisdiction,  at  the  death 
of  the  proprietor,  ipso  facto  f  Is  it, 
then,  not  the  better  doctrine  that  every 
thing  pertaining  to  the  administration 
is  in  rem,  and  that  all  contests  relative 
to  the  manner  of  administration  should 
take  place  in  the  jurisdiction  already 
attached,  original  and  complete  ?  If 
the  doctrine  which  supports  the  case 
of  Ferguson  v.  Hunter,  supra,  be  cor- 
rect, the  whole  administration  may  be 
impeached  in  the  case  of  a  will,  or  ac- 
cording to  that  held  in  Botsford  v. 
0' Conner,  supra,  in  case  of  intestacy 
in  ejectment. 

On  the  decease  of  the  ancestor  or 
benefactor,  the  heirs  or  beneficiaries 
know  that,  before  they  can  receive 
their  inheritance  or  devise,  the  estate 
must  be  settled  in  probate.  Is  it  un- 
reasonable or  unjust  to  ask  them  to 
meet  and  settle  all  questions  in  pro- 
bate or  on  appeal  ?  Is  it  unreasonable 


or  unjust  to  protect  bona  fide  purchas- 
ers at  judicial  sales  against  the  un- 
skillful exercise  of  the  probate  juris- 
diction, by  insisting  that  all  who  are 
interested  in  it  should  be  chargeable 
with  notice  of  the'  attaching  of  the 
jurisdiction,  when  all  they  ultimately 
get  comes  directly  through  this  very 
jurisdiction  to  them  in  the  first  in- 
stance? Is  it  just  or  reasonable  that 
they,  thus  benefited  by  such  a  juris- 
diction, fully  notified  of  it  in  fact, 
should  be  treated  as  the  owners  of 
property,  yet  in  custodia  legis  and 
brought  in  personam  into  the  same 
court  where  they  must  eventually 
come  to  get  their  property  ?  Having 
occasion  to  examine  these  questions 
heretofore  with  great  care  in  closely 
litigated  cases,  we  have  taken  the  lib 
erty  of  adding  the  points  to  show  the 
necessity  of  a  skillful  and  careful  ex- 
ercise of  the  probate  jurisdiction  in 
view  of  the  cases  Ferguson  v.  Hunter 
and  Boisf&rd  v.  0' Conner,  and  their 
kindred.  The  practitioner  who  would 
examine  the  matter  critically  by  start- 
ing here  and  comparing  them  with 
Qrignon  v.  Astor,  and  its  kindred 
cases,  will  see  the  issue  involved.  To 
those  who  rely  upon  the  former,  and 
as  counsel  for  parties  interested  in  es- 
tates of  the  deceased,  we  would  say, 
beware  of  the  latter,  and  to  those  who 
rely  upon  the  latter,  and  insist  on  orig- 
inal, complete  jurisdiction  in  probate, 
we  would  say,  beware  of  the  former. 
They  may,  in  Illinois,  be  said  to  be 
settled,  but  the  questions  involved,  in 
view  of  the  new  constitution  and 
.  changes  in  our  statutes,  are  subject  to 
re-examination.  There  is  no  position 
to  which  jurists,  wbo  have  adhered 
to  the  doctrine  that  such  proceedings 
are  in.  rem,  are  more  tenacious.  They 
see  the  jurisdiction  attaching  at  the 
decease  of  the  proprietor.  They  start 
there,  with  the  probate  jurisdiction 
over  all  the  estate,  whether  it  be  real 
or  personal.  And  when  we  consider 


OH.  III.]  INTESTATE   ESTATES.  63 

Introduction. 

then  attaches  to  the  estate.  The  production  and  probate  of  the  will 
are  the  first  things  to  do  after  the  funeral  of  the  deceased  testator. (i) 
Application  for  letters  of  administration  is  the  first  step  to  be  taken 
after  the  burial  of  the  intestate.  The  statute  (/)  prescribes  the 
mode  of  procedure  in  such  cases  for  the  court  and  all  concerned  in 
the  administration  of  the  estate  which  fortune  or  frugality  may  have 
conferred  upon  the  one  who  has  now  been  laid  in  the  grave- 
Through  the  sorrow  and  anguish  of  death-bed  scenes  and  funeral 
rites  and  ceremonies,  the  probate  power  of  the  county  court  beams 
forth  to  illumine  the  gloom,  and  well-drawn  statutes  now  come  in 
to  guide  in  the  proper  disposition  of  the  estate,  according  to  the  law 
of  administration,  and  its  distribution  according  to  the  will  or  the 
law  of  descent. 

We  have,  for  the  present,  disposed  of  the  law  of  wills  and  the 
statute  of  administration,  so  far  as  relate  exclusively  to  executors 
and  their  appointment,  powers  and  duties  generally,  and  their 
renunciation,  resignation  and  removal.  We  now  purpose  to  consider 
the  law  of  administration,  so  far  as  it  relates  exclusively  to  adminis- 
trators, their  appointment,  powers  and  duties  generally,  and  their 
resignation  and  removal. 

At  the  death  of  the  intestate,  as  of  the  testator,  the  statute  pro- 
vides for  the  exigencies  of  the  hour.  Nothing  should,  however,  be 

(»•)  See  page  14,  supra.  (j)  §  18,  R.  S.  1874,  p.  107. 

how  far  the  policy  of  our  law  has  been  the  whole  controversy  turns  on  the 
to  ignore  the  old  distinctions  between  point  of  departure.  If  it  be  true  that 
real  and  personal  property,  and  to  as-  real  property  passes  at  the  death  of 
similate  them;  how  earnestly  and  stren-  the  proprietor  under  the  probate  juri.s- 
uously  the  State  tribunals  have  strug-  diction,  then  the  exercise  of  such  a 
gled  against,  but  sooner  or  later  have  jurisdiction  ought  not  to  be  collaterally 
succumbed  to,  the  doctrine  promul-  questioned.  It  is  in  rem.  If  the  real 
gated  by  the  United  States  supreme  estate  goes  immediately  to  heirs  or 
court  in  Grignon  v.  Astor,  we  must  devisees,  thus  to  divest  their  title, 
confess  that  we  cannot  regard  such  they  must,  according  to  well-settled 
decisions  as  Ferguson  v.  Hunter  and  principles,  be  brought  personally  be- 
Botsford  v.  O 'Conner  as  settling  the  fore  the  court  by  personal  or  construct- 
law  on  this  point  even  in  the  State  of  ive  service.  The  jurisdiction  is  partly 
Illinois.  In  view  of  them,  it  behooves  in  rem  and  partly  in  personam.  This 
the  probate  courts  to  be  more  careful  brings  us  back  to  the  point  where  we 
of  the  exercise  of  their  jurisdiction,  started,  and  shows  that  the  text  needs 
In  view  of  the  case  of  Grignon  v.  As-  qualification  when  it  is  said  that  the 
tor,  it  behooves  heirs  and  devisees  10  probate  jurisdiction  attaches  at  the 
be  more  careful  in  watching  the  exer-  instant  death  comes  to  the  proprietor 
cise  of  probate  jurisdiction  over  the  of  real  estate  in  view  of  the  cases 
estates  in  which  they  are  interested.  Ferguson  v.  Hunter,  and  Botsford  v. 
Volumes  might  be  written  on  the  cases  0' Conner.  We  shall  discuss  the  sub- 
involving  this  issue.  To  our  mind,  ject  further  under  chapter  vii,  infra. 


64  INTESTATE   ESTATES.  [CH.   III. 

Appointment  of  administrators. 

done  with  unseemly  haste.  For  sixty  days(/f)  the  claims  of  credi- 
tors are  stayed.  Their  lien  has  attached,  and  if  enforced  within  a 
reasonable  time,  is  paramount.(Z)  Sixty  days  are  allowed  for  the 
grief  of  mourning  relatives  to  abate.(w)  Then,  if  the  relatives 
do  not  apply  during  the  next  fifteen  days,  the  creditors  become 
entitled  to  letters  of  administration.  If  relatives  and  creditors 
are  wanting,  the  peculiar  office  of  public  administrator,  with  it* 
powers  and  duties,  intervenes ;  if  relatives  are  absent  and  creditors 
lenient  or  neglectful,  then  the  discretion  is  ample  with  the  court  in 
granting  letters  of  administration  to  suitable  persons.  If  the  right 
of  representation  be  contested,  then  a  special  administrator  may  be 
empowered,  so  that  every  possible  contingency  is  fully  provided  for. 
Hence,  we  may  consider  the  statute  in  hand  as  follows : 

(1.)  As  it  relates  to  the  appointment,  powers  and  duties,  and  the 
removal  of  the  public  administrator. 

(2.)  As  it  provides  for  the  appointment,  powers  and  duties,  and 
the  resignation  and  removal  of  an  administrator  to  collect. 

(3.)  As  it  provides  for  the  regular  grant  of  administration  to  the 
persons  preferred  and  in  the  law  entitled  thereto;  the  powers  and 
duties  of  the  administrator,  and  his  resignation  and  removal. 

(4.)  As  it  relates  to  the  recognition  and  exercise  of  the  powers^ 
rights  and  duties  of  an  administrator  appointed  in  another  jurisdic- 
tion, or  the  foreign  administrator. 

In  doing  this,  we  shall  refer  to  the  decisions  and  former  statutes 
as  we  proceed,  and  conclude  the  chapter  with  a  resume  of  the  decis- 
ions and  statutes  involved  not  already  discussed  and  delineated. 


SECTION  II.  —  APPOINTMENT  OF  ADMINISTRATORS. 

1.  Administrators  virtually  executors. 

2.  Of  several  kinds,  general  and  special. 

3.  An  intestate 

4.  Special  administrators. 

5.  Administrator  de  bo  nix  non. 

6.  Administrator  pendents  lite. 

7.  Letters  of  administration  are  a  grant  of  power. 

8.  Intestacy  and  death  of  decedent  must  be  proved. 

9.  How  proved. 

10.  The  English  Statutes,  and 

(&).§  IS,  R.  S.  1874,  p.  107.  (m)  §  10.  R.  S.  1874,  p.  108  ;  Coth- 

(t)  Meyer  v.  McDouyal,  47  111.  278,     ran's  Annotated  Statutes,  p.  53. 
R.  S.  1874,  p.  417. 


CH.  III.]  INTESTATE   ESTATES.  65 

Appointment  of  administrators. 

11.  Our  statute  compared. 

12.  The  jus  representation's. 

13.  Degrees  of  consanguinity  according  to  the  civil  law. 

14.  The   public  administrator  appointed  by  the  governor,  by  and  with  the 

consent  of  the  senate. 

15.  When  the  estate  may  be  committed  to  the  public  administrator. 

16.  His  duties  in  general. 

17.  His  expenses  preferred. 

18.  Removal  in  special  cases  on   appearance   of  parties   entitled  within  six 

months  after  his  appointment. 

19.  To  advertise  on  settlement,  etc. 

20.  Administrator  to  collect. 

21.  Letters  to  collect. 

22.  Bond  of  administrator  to  collect. 

23.  His  oath. 

24.  Who  may  be  administrators  generally. 

(1.)  They  should  be  of  lawful  age  and  legally  competent. 
(2.)  The  preference  conferred  by  statute. 
(3.)  Waiver  of  juris  representationis. 

(4.)  Who  to  administer,  on  the  death  of  surviving  husband,  as  admin- 
istrator de  bonis  non  of  his  deceased  wife's  estate,  quaere  t 
(5.)  Next  of  kin  —  the  relatives  generally. 
(6.)  Renunciation  or  relinquishment. 

25.  Venue  —  proper  county. 

26.  Practice  —  how  to  be  appointed  administrator. 

27.  Petition  for  letters  of  administration. 

28.  Affidavit  of  death,  intestacy,  etc. 

29.  The  administrator's  bond. 

30.  And  letters  of  administration. 

31.  The  oath. 

32.  Form  of  bond  by  administrator  with  the  will  annexed. 

33.  Oath  of. 

34.  Additional  bond. 

35.  Decisions  in  Illinois. 

36.  Foreign  executors  and  administrators,  how,  where  and  when  they  may 

act ;  limitations  and  restrictions. 

1.  AN  ADMINISTRATOB  is  a  person  appointed  or  authorized  to 
manage  and  distribute  the  estate  of  the  intestate,  or  of  a  testator 
who  has  no  executor(w)  —  virtually  an  executor ;  his  duty  is  to 
settle  the  estate  of  a  deceased  person,  either  where  no  will  appears, 
or  if  such  appear,  and  for  any  reason  there  is  no  person  to  act  as 
executor  of  the  duties  imposed  by  the  will.  If  there  be  no  will,  he 
is  simply  an  administrator  to  settle  the  estate  according  to  the 

(ri)  Bouvier. 

9 


66  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

requirements  of  the  law  applicable  to  the  case.  He  has,  in  all 
respects,  the  same  rights  and  duties,  and  is  subject  to  the  same 
responsibilities,  as  an  executor;  except  that,  where  the  testator 
directs  that  his  executor  t  shall  act  without  giving  sureties  for  his 
faithful  administration,  he  cannot  be  required  to  do  so  unless,  for 
special  cause  shown,  the  county  court  should  consider  that  the 
rights  of  creditors  and  others  make  security  indispensable  to  the 
ends  of  justice,  or  where  the  statute  requires  such  security.  The 
administrator,  being  an  officer  of  the  court,  is  required,  in  all  cases, 
to  give  security  for  the  faithful  performance  of  his  duties.  Regu- 
larly, the  administrator  can  do  no  act  in  regard  to  the  estate  before 
his  appointment  by  the  court,  except  such  necessary  acts  as  are 
indispensable  to  the  preservation  of  the  estate  ;  and,  as  to  such,  there 
can  be  no  question  but  they  will  be  brought  under  the  shield  of  a 
subsequent  appointment  from  the  court,  and  that  as  .well  in  the  case 
of  an  administrator  as  of  an  executor.(o) 

2.  ADMINISTRATORS  ARE  OF  SEVERAL  KINDS  :  (1.)  General  admin- 
istrators, or  those  who  have  the  right  to  administer  the  whole  of  the 
decedent's  estate.     (2.)  Special  administrators,  or  those  who  admin- 
ister a  part  of  an  estate,  or  who  act  for  a  limited  time  or  purpose. 

General  administrators  are  those  who  are  appointed  to  administer 
the  estate  of  an  intestate,  or  who  are  administrators  cum  testamento 
annexo,  with  the  will  annexed.  , 

3.  AN  INTESTATE  is  one  who  dies  leaving  no  will,  and  whose 
assets  are  administered  according  to  the  law.    On  the  death  of  a 
person  who  has  made  no  will,  his  real  estate  descends  to  his  heirs, 
subject  to  the  payment  of  debts,  after  personal  estate  is  exhausted, 
while  his  personal  estate  is  vested  in  such  persons  as  may  be  legally 
appointed  by  the  proper  officer  or  tribunal,  in  trust,  to  pay  the 
debts  of  the  deceased,  and  distribute  the  surplus  to  those  by  law 
entitled  to  it.(p)     But  such  real  estate  is  subject  to  the  payment  of 
the  debts  of  the  intestate,  in  case  the  personal  estate  be  insufficient 
for  that  purpose. 

Administration,  cum  testamento  annexo,  is  granted  when  the  de- 
ceased has  made  a  will  and  no  executor  is  named  in  the  same,  or  the 
executor  therein  named  shall  die,  refuse  to  act,  or  be  otherwise  dis- 
qualified. In  that  case,  letters  of  administration  are  granted  to 
some  proper  person,  to  which  is  attached  a  copy  of  the 


(o)  3  Redf.  21-23.  (p)  2  Bouv.  Inst.  141.  (q)  Id.  144. 


CH.  III.]  INTESTATE   ESTATES.  67 

Appointment  of  administrators. 

4.  SPECIAL  ADMINISTRATORS  are  also  of  several  kinds;  admin- 
istrator de  bonis   non  of    goods  not    previously  administered   is 
appointed  when  a  former  administrator  has  partially  administered 
and  has  died,  or  has  not  fully  administered  for  any  cause.     His 
duty  is  to  complete  the  administration ;  and,  so  far  as  the  estate  is 
committed  to  him,  he  has  all  the  power  of  a  general  administrator. 

5.  ADMINISTRATORS  DE  BONIS  NON,  cum  testamento  annexo,  are 
those  who  are  appointed  to  complete  the  execution  of  a  will  when 
the  executor  has  commenced  administering  and  dies,  or  otherwise 
becomes  incapable  or  is  removed. 

An  administrator,  durante  minore  aetate,  acting  during  minority, 
is  appointed  when  the  executor  in  a  will  is  an  infant  and  has  not 
legal  capacity  to  execute  the  will.  His  authority  is  limited  to  the 
time  when  the  minor  becomes  capable,  and  is  otherwise  limited  as  to 
his  acts. 

6.  AN  ADMINISTRATOR  PENDENTS  LITE,  pending  litigation,  is  one 
appointed  to  do  certain  acts  pending  a  contest  in  relation  to  the  pro- 
bate of  a  will,  to  the  right  of  executorship,  or  the  right  to  adminis- 
ter, etc.    Under  the  statute,  he  is  called  administrator  to  collect. 
This  administrator  is  but  an  officer  of  the  court.    His  power  ex- 
tends to  collecting  and  preserving  the  estate  only.     He  may  bring 
suits.(r) 

There  are  also  administrators  durante  absentia,  etc.,  during  ab- 
sence. The  foregoing  enumeration  will  be  sufficient  for  the  purpose 
of  this  work.(s) 

If  the  deceased  leave  no  will,  letters  of  administration  will  be 
granted  of  his  personal  estate. 

7.  LETTERS  OF  ADMINISTRATION  ARE  A  GRANT  OF  POWER,  and 
confer  upon  the  grantee  the  qualified  property  in  the  personal  estate 
pertaining  to  the  trust.     They  clothe  the  recipient  with  the  absolute 
title  to  this  property. (t) 

8.  INTESTACY,  PROOF  OF,  must  be  made  before  such  a  grant  can 
be  made.    Proof  of  the  death  of  the  intestate,  too,  must  be  pre- 
sented, and  these  facts  found  to  obtain  the  letters.(w) 

Intestacy  may  be  absolute  or  qualified.  It  is  absolute  where  no 
will  is  left ;  qualified  where  the  deceased  has  made  a  will  as  regards 

(r)  §  11,  R.  S.  1874,  p.  106.  (t)  See  p.  83,  infra, 

(s)  See  Redf.  on  Wills,  Administra-        (u)  %%  18,  20,  R.  S.  1»Y4,  p.  107. 
tors. 


68  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

his  or  her  real  estate  only,  (v)  or  has,  by  will,  only  disposed  of  his 
foreign  property.(w) 

9.  DEATH,  proof  of,  may  be  by  affidavit  of  a  member  of  the  family 
generally,  unless  the  point  be  contested ;  and  proof  of  intestacy  in 
the  same  manner.(a;) 

10.  THE  ENGLISH  STATUTES.    The  persons  preferred  under  the 
English  statutes  are  "  the  next  and  most  lawful  friends  of  the  de- 
ceased "  (y)  "  the  widow  of  the  same  person  deceased  or  to  the  next 
of  his  kin,  or  both,  as  by  the  discretion  of  the  same  ordinary  shall 
be  thought  good."(z) 

The  husband  oifemmes  couverte,  dying  intestate, "  may  demand  and 
have  administration  of  their  rights,  credits  and  other  personal  estate, 
and  recover  and  enjoy  the  same  as  they  might  have  done  before  the 
making  of  the  22  and  23  Car.  II,  ch.  10,"(a)  and  the  relatives  (not 
next  of  kin)  .having  distributive  shares,  jure  representation's  under 
the  22  and  23  Car.  II,  ch.  10,  and  1  Jac.  II,  ch.  17,  and  also  all  per- 
sons having  a  cognizable  beneficial  interest  in  the  intestate's  estate, 
may  become  grantees  on  the  relinquishment  of  the  pot  lores. 

Our  statute  in  this  respect  is  founded  on  these  English  statutes, 
and  is  as  follows : 

11.  ADMINISTRATION  shall  be  granted  to  THE  HUSBAND  upon  the 
goods  and  chattels  of  his  wife,  and  to  the  widow  or  next  of  kin  to 
the  intestate,  or  some  of  them,  if  they  will  accept  the  samfc  and  are 
not  disqualified ;  but  in  all  cases  THE  WIDOW  SHALL  HAVE  PREFER- 
ENCE ;  and  if  no  widow  or  other  relative  of  the  intestate  applies 
within  sixty  days  from  the  death  of  the  intestate,  the  county  court 
may  grant  administration  to  ANY  CREDITOR  who  shall  apply  for  the 
same.    If  no  creditor  applies  within  fifteeen  days  next  after  the 
lapse  of  sixty  days,  as  aforesaid,  administration  may  be  granted  to 
ANY  PERSON  whom  the  county  court  may  think  will  best  manage 
all  the  estate.    In  cases  where  the  intestate  is  a  non-resident,  or 
without  a  widow,  next  of  kin  or  creditors  in  this  State,  but  leaves 
property  within  the  estate,  administration  shall  be  granted  to  the 
PUBLIC  ADMINISTRATOR  of  the  proper  county;  Provided,  that  no 
administration  shall,  in  any  case,  be  granted  until  satisfactory  proof 
be  made  before  the  county  court,  to  whom  application,  for  that 

(«)  O'Dwyer   v.  Geare,  1   Swab.  &  (a;)  See  p.  76,  infra. 

Trist.  466  ;  Jane  Barden,  I  L.  R.,  P.  &  (y)  31  Edw.  Ill,  ch.  11. 

D.  325.  (z)  21  Hen.  VIII,  cli.  5,  §  3. 

nc)  Coode,  1  L.  R.,  P.  &  D.  449.  (a)  29  Car.  II,  cli.  3,  g  25. 


CH.  III.]  INTESTATE   ESTATES.  69 

Appointment  of  administrators. 

purpose,  is  made,  that  the  person  in  whose  estate  letters  are  requested 
is  dead  and  died  intestate;  And  provided  further,  that  no  non-resi- 
dent of  this  State  shall  be  appointed  administrator  or  allowed  to  act 
as  such.(J) 

12.  JDS  REPRESENTATIONS.  This  right  is  oftentimes  of  great 
importance,  and  may  be  discussed  in  view  of  the  English  authorities. 

BACHELOR  DECEASED,  OR  A  WIDOWER  without  issue.  His  father 
has  this  right  exclusively,  notwithstanding  the  deceased  has  left  a 
mother.  The  father  would  thus  seem  to  be  the  sole  next  of  kin  of 
the  intestate.  The  jure  mariti  at  common  law  and  the  statute 
gives  administration  of  his  deceased  wife's  estate  to  THE  HUSBAND. 

If  the  intestate  has  left  no  widow,  the  intestate's  children  (if  qual- 
ified by  age),  or  some  or  one  of  them,  take  the  grant.  They  do  so  if 
there  be  a  widow  and  she  relinquish,  has  died  since  the  decease  of 
the  intestate,  or  is  excluded  by  the  court  as  unworthy  or  disquali- 
fied, or  fails  to  act  or  qualify. 

If  the  intestate  has  left  neither  widow,  husband,  father  nor  chil- 
dren, the  next  of  kin  take  administration. 

Those  persons  only  are  to  be  ranked  as  next  of  kin  of  an  intestate 
who  were  such  at  the  time  of  the  intestate's  death. 

If  the  widow  renounce,  or  has  died  since  the  decease  of  the  intes- 
tate, or  is  incapacitated  or  unworthy,  administration  will  be  granted 
to  the  next  of  kin  to  the  intestate. 

If  the  husband  renounce  and  consent,  administration  will  be 
granted  to  the  next  of  kin  to  the  intestate.(c) 

If  the  intestate  be  a  divorced  woman,  her  next  of  kin  take 
administration. 

The  court  will  grant  administration  to  a  person  nominated  by  all 
the  next  of  kin.(^) 

Also  to  the  husband  of  a  sole  next  of  kin,  being  the  sole  person 
entitled  to  the  estate,  on  her  renouncing  or  being  cited  and  not 
appearing  to  the  process.(e) 

RECAPITULATION.  It  may  be  said  that  administration  is  granted 
to: 

(1.)  Husband  or  wife ; 

(2.)  Child  or  children; 

('/)  §  18,  R.  S.  1874,  p.  107.  (e)  Saynes  v.  Matthews,  1  Swab.  & 

(<•.)  Jnne  Bett,  1  Swab.  &  Trist.  290.  Trist.  462 ;    Wenham  v.    Wenham,   6 

(d)  Farrett  v.    Browbill,  3  Swab.  &  Notes  of  Cases,  17. 
Trist.  468. 


70  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

(3.)  Grandchild  or  grandchildren; 

(4.)  Great-grandchildren  or  other  descendants; 

(5.)  Father; 

(6.)  Mother; 

(7.)  Brothers  and  sisters; 

(8.)  Grandfathers  or  grandmothers; 

(9.)  Nephews  and  nieces,  uncles,  aunts,  great  grandfathers  or 
great  grandmothers. 

(10.)  Great  nephews,  great  nieces,  cousins  german,  great  uncles, 
great  aunts,  great  grandfather's  father,  and  so  on,  according  to  the 
proximity  of  kindred  ;  all  those  in  the  same  degree  being  equally 
entitled.(/) 

13.  DEGREES  OF  CONSANGUINITY,  ACCOKDING  TO  THE  CIVIL  LAW, 
govern,  except  as  modified  by  the  law  of  descent,  in  these  matters 
and  in  the  distribution.     We  give  further  on  the  tables  made  use  of 
frequently  to  illustrate  the  same,(/) 

The  granting  of  letters  where  there  is  a  contest  over  the  jure 
representationis,  under  our  statute  may  be  aided,  if  not  satisfactorily 
settled,  by  reference  to  the  English  cases.  No  cases  are  to  be  found 
in  our  reports  where  the  right  has  been  severely  contested.  (g)  The 
discretion  of  the  court  is  broad,  and  its  decision  subject  to  review 
only  on  appeal.  (g) 

14.  THE  PUBLIC  ADMINISTRATOR,  HOW  APPOINTED.    This  func- 
tionary is  appointed  by  the  governor  of  the  State,  by  and  with  the 
consent  of  the  senate.    He  is  to  take  an  oath  before  entering  upon 
the  duties  of  his  office  : 

I  do  solemnly  swear  (or  affirm  &«  the  case  may  be),  that  I  will  support  the 
constitution  of  the  United  States  and  of  the  State  of  Illinois,  and  that  I  will 
faithfully  discharge  the  duties  of  the  office  of  public  administrator  of 
county,   according  to  the  best   of   my  ability.     One  is  appointed    for   each 
count 


15.  WHEN  AN  ESTATE  MAT  BE  COMMITTED  TO  THE  PUBLIC  ADMIN- 
ISTRATOR. Before  the  county  court  can  obtain  jurisdiction  to  com- 
mit an  estate  to  a  public  administrator  it  should  affirmatively  appear, 
and  be  preserved  of  record,  that  there  was  not  any  relative  or  creditor 
within  the  State  to  whom  administration  might  be  committed  ;  and 

(/)  See  chap,  x,  infra.  (h)  §§  44,  45,  R.  S.   1874,  p.   112  ; 

(g)  But  see    Schnell  v.  Chicago,   38     Cothran's  Annotated  Statutes,^.  60. 
111.  382,  and  page  74,  infra. 


CH.  III.J  INTESTATE   ESTATES.  71 

Appointment  of  administrators. 

that  the  application  was  made  by  a  party  interested  in  the  estate,  (i) 
The  provisions  of  the  first  section  of  the  act  supplemental  to  the 
statute  of  wills,  of  March  1,  1833,  in  relation  to  the  appointment  of 
public  administrators,  is  not  restricted  in  its  application  to  cases  of 
the  death  of  resident  proprietors  of  real  estate,  but  embraces  all 
classes  of  persons,  (j)  A  public  administrator  must  give  a  bond  and 
take  out  letters  of  administration  in  each  particular  case,  before  he 
can  be  invested  with  any  control  over  an  estate,  (k)  If  the  public 
administrator  neglect,  for  sixty  days,  to  qualify  after  it  becomes  his 
duty  so  to  do,  his  office  is  thereby  vacated  and  the  governor  is  to  fill, 
the  vacancy.* 

16.  GENERALLY  the  public  administrator  is  to  take  such  measures 
as  he  may  deem  proper  to  protect  and  secure  the  effects  of  non-resi- 
dent intestates,  and  resident  intestates,  who  have  neither  relatives  nor 
creditors  in  the  State,  from  waste  and  embezzlement  until  adminis- 
tration is  granted. (I) 

17.  THE  EXPENSES  of  the  public  administrator  are  to  be  allowed 
by  the  county  court,  and  take  preference  of  all  other  demands 
against  the  estate,  funeral  expenses  excepted.(Z) 

He  is  to  discharge  the  functions  in  particular  cases  in  the  same 
manner  and  under  the  direction  and  supervision  of  the  court  as 
any  other  administrator. 

18.  REMOVAL.    The  appearance  within  six  months  after  grant  of 
letters  to  him,  of  the  widow,  next  of  kin  or  other  persons  entitled 
thereto,  is  cause  for  the  revocation  of  the  grant  to  him  and  re-grant 
to  the  persons  entitled.(w) 

19.  He  is  to  advertise  after  settlement  for  claims  and  demands, 
and  finally  to  pay  over  the  balance  as  prescribed  into  the  county 
treasury,  to  be  paid  over  whenever  the  persons  entitled  thereto  shall 
appear.(rc) 

20.  ADMINISTRATOR  TO  COLLECT.    During  any  contest  in  relation 
to  the  probate  of  any  will,  testament  or  codicil,  before  the  same  is 
recorded,  or  until   a  will  which  may  have   once   existed,   but   is 
destroyed  or  concealed,  is  established,  and  the  substance  thereof  com- 

(t)  §46,  id.;  Unknown  Heirs  of  Lang-  (1)  8  50,  act  April  1, 1872 

worthy  v.  Baker,  23  111.  489 ;  Schnett  (m)  §  48,  id. 

v.  Chicago,  28  id.  382.  (n)  See  p.  278,  infra. 

(j)  Bowies'  Heirs  v.  Rouse,  Adm'r,  3  *  See  act  January  10,  L.  1825,  p.  70  ; 

G'.lra.  409.  R.  S.  1833,  p.  659  ;  Laws  1843,  p.  10  ;  §§ 

'/.•)   Thomas,    Adm'r,   v.  Adams.    5  56-62,  R.  S.  1845  •  act  April  1   1872,^3 

t.ilm.  319.  44-50.  R.  S.  1874,  pp.  112,  113. 


72  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

mitted  to  record,  with  proof  thereupon  taken,  or  during  any  contest 
in  regard  to  the  right  of  executorship,  or  to  administer  the  estate  of 
any  person  dying  either  testate  or  intestate,  or  whenever  any  other 
contingency  happens  which  is  productive  of  great  delay  before  letters 
testamentary  or  of  administration  can  be  issued  upon  the  estate  of 
such  testator  or  intestate,  to  the  person  or  persons  having  legal  pref- 
erence to  the  same,  the  county  court  may  appoint  any  person  or 
persons  as  administrators,  to  collect  and  preserve  the  estate  of  any 
such  decedent,  until  probate  of  his  will,  or  until  administration  of 
his  estate  is  granted,  taking  bond  and  security  for  the  collection  of 
the  estate,  making  an  inventory  thereof,  and  safe  keeping  and  deliv- 
ering up  the  same  when  thereunto  required  by  the  court,  to  the 
proper  executor  or  administrator,  whenever  they  shall  be  admitted 
and  qualified  as  such.(o) 

21.  LETTERS  TO  COLLECT.    The  form  of  the  letters  to  be  granted 
to  the  person  Or  persons  so  appointed  to  collect  and  preserve  the 
estate  of  the  decedent,  as  aforesaid,  shall  be  as  follows,  viz. : 

The  People  of  the  State  of  Illinois,  to  att  to  whom  these  presents  shall  come, 
greeting : 

Know  ye,  that  whereas  A  B,  late  of  the  county  of  ,  and  State  of  Illinois, 
deceased,  as  it  is  said,  had,  at  his  (or  her)  decease,  personal  property  within 
this  State,  the  administration  whereof  cannot  be  immediately  granted  to  the 
persons  by  law  entitled  thereto,  but  which,  if  speedy  care  be  not  taken,  may 
be  lost,  destroyed  or  diminished ;  to  the  end,  therefore,  that  the  same  may  be 
preserved  for  those  who  shall  appear  to  have  a  legal  right  or  interest  therein, 
we  do  hereby  request  and  authorize  C  D  (and  E  F,  if  two  shall  be  appointed), 
of  the  county  of  ,  and  State  aforesaid,  to  collect  and  secure  the  said  prop- 

erty, wheresoever  the  same  may  be,  in  this  State,  whether  it  be  goods,  chattels, 
debts  or  credits,  and  to  make,  or  cause  to  be  made,  a  true  and  perfect  inventory 
thereof,  and  to  exhibit  the  same,  with  all  convenient  speed,  to  the  county 
court  of  the  said  county  of  ,  together  with  a  reasonable  account  of  his 

collection,  acts  and  doings  in  the  premises  aforesaid. 

Witness,  E  F,  clerk  of  the  county  court  in  and  for  said  county  of  ,  and 

the  seal  of  said  court,  this  day  of  ,  A.  D.  18 

E  F,  Clerk.(p) 

22.  BOND  OF  ADMINISTRATOR  TO   COLLECT.    Before  letters   of 
administration  to  collect  shall  be  granted  as  aforesaid,  the  person  or 
persons  so  appointed  shall  give  bond,  with  good  and  sufficient 
security,  to  be  approved  by  the  court,  in  the  following  form,  to  wit : 

(o)  §  11,  R.  S.  1874, p.  106.  (p)  §  12,  K.  S.  16/4,  p.  106. 


OH.  III.  ]  INTESTATE   ESTATES.  73 

Appointment  of  administrators. 

Know  all  men  by  these  presents,  that  we,  C  D,  E  F  and  J  K,  of  the  county 
of  ,  and  State  of  Illinois,  are  held  and  firmly  bound  unto  the  people  of 

the  State  of  Illinois  in  the  penal  sum  of  dollars,  current  money  of  the 

United  States,  for  the  payment  of  which,  well  and  truly  to  be  made  and  per- 
formed, we  bind  ourselves,  our  heirs,  executors  and  administrators,  jointly, 
severally  and  firmly,  by  these  presents. 

Witness  our  hands  and  seals,  this  day  of  ,  A.  D.  18 

The  condition  of  the  above  obligation  is  such,  that  if  the  above-bounden  C 
D  shall  well  and  Lonestly  discharge  the  duties  appertaining  to  his  appoint 
ment  as  administrator,  to  collect  of  the  estate  of  A  B,  late  of  the  county  of 
deceased,  shall  make,  or  cause  to  be  made,  a  true  and  perfect  inventory  of  all 
such  goods,  chattels,  debts  and  credits  of  the  said  deceased,  as  shall  come  to 
his  or  her  possession  or  knowledge,  and  the  same  in  due  time  return  to  the 
county  court  of  the  proper  county  ;  and  shall  also  deliver  to  the  person  or  per- 
sons authorized  by  the  said  county  court,  as  executors  or  administrators,  to 
receive  the  same,  all  such  goods,  chattels  and  personal  estate  as  shall  come  to 
his  or  her  possession,  as  aforesaid,  and  shall,  in  general,  perform  such  other 
duties  as  shall  be  required  of  him  (or  them)  by  law,  then  the  above  obligation 
to  be  void ;  otherwise  to  remain  in  full  force  and  virtue. 

AVhich  said  bond  shall  be  signed  and  sealed  by  such  administrator 
and  his  securities,  and  filed  with  the  clerk  of  the  county  court  and 
spread  upon  the  records. 

23.  OATH,  ETC.  Before  any  administrator  to  collect  shall  enter 
upon  the  duties  of  his  appointment  he  shall  take  and  subscribe  the 
following  oath  or  affirmation  before  the  clerk  of  the  county  court, 
to  wit : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  well  and  honestly  discharge  the 
trust  reposed  in  me  as  administrator  to  collect  the  estate  of  A  B,  deceased, 
according  to  the  tenor  and  effect  of  the  letters  granted  to  me  by  the  county 
court  of  the  said  county  of  ,  to  the  best  of  my  knowledge  and  ability :  so 

help  me  God." 

Which  said  oath  shall  be  in  writing,  subscribed  by  the  party 
making  it,  and  filed  in  the  office  of  the  clerk  of  the  county  court 
before  whom  the  same  is  taken.(r) 

24.    WHO  MAY  BE    ADMINISTRATORS. 

(1. )  The  person  appointed  should  be  twenty-one  years  of  age,  and 
iu  all  other  respects  legally  competent.  Infants  and  persons  -non 
compox  mentis,  of  unsound  minds,  are  incapable  of  executing  the 
trust.  Until  the  enabling  act  of  1861,  known  as  the  married 
woman's  act,  femmes  convert  were  incapacitated. (/•) 

(/•)  Uul.i  v.  Buntin,  47  111.  396. 


74  INTESTAT15   ESTATES.  [CH.  Ill, 

Appointment  of  administrators. 

(2.)  Of  competent  persons,  the  statute  gives  the  following  prefer- 
ence over  others :  In  case  of  the  death  of  the  wife,  the  husband  has 
the  superior  right  to  administer.  In  case  of  the  death  of  the  hus- 
band, the  widow  has  the  preference;  then  the  next  of  kin,  after 
whom  creditors  have  the  preference  over  those  who  are  not  relatives, 
and  also  over  the  public  administrator.  When  there  are  several 
persons  in  the  same  degree,  it  is  competent  for  the  judge,  in  his 
discretion,  to  select  any  one  of  them  who  will  accept  the  appoint- 
ment. If  the  widow  or  other  relatives  do  not  apply  for  letters  within 
sixty  days  after  the  intestate's  death,  any  creditor  applying  may  be 
appointed  administrator.  If  no  such  application  be  made  by  a 
creditor  within  fifteen  days  after  the  lapse  of  the  sixty  days,  then 
administration  may  be  granted  by  the  court  to  such  other  person  as 
it  may  think  will  best  manage  the  estate.  The  public  administrator 
has  the  exclusive  right  to  administer  when  the  intestate  was  a  non- 
resident of  the  State,  and  without  a  widow,  next  of  kin,  or  creditor 
in  this  State.* 

(3.)  WAIVEK.  If  the  person  having  a  prior  right  to  letters  of 
administration  does  not  avail  himself  of  his  preference  within  the 
prescribed  time,  he  is  considered  as  having  waived  it,  and  the  per- 
sons next  entitled  may  be  appointed.  A  person  having  a  preference 
may  renounce  or  waive  it,  which  will  have  no  different  effect  upon 
others  than  to  bring  forward  those  who  are  next  in  order  in  law. 
As  the  statute  fixes  the  order  of  preference,  the  person  first  entitled 
cannot  renounce  and  introduce  another  in  his  or  her  place,  to  the 
exclusion  of  those  who  have  the  next  right  to  administration  under 
the  statute. 

(4.)  Upon  the  death  of  the  husband,  who  has  survived  his  wife, 
and  partially  administered  upon  her  estate,  his  executor  or  adminis- 
trator is  entitled  to  be  administrator  de  bonis  non  of  unadminis- 
tered  goods  of  the  wife,  in  preference  to  her  next  of  kin.  (s)  But 
qucsre,  since  the  enabling  act  of  1861. 

Granting  letters  of  administration  to  the  next  of  kin  of  the 
deceased  wife,  where  the  husband  has  survived  her  and  died,  has 
sometimes  been  done,  but  such  administrator  js  regarded  as  the 
trustee  of  the  representatives  of  the  husband. (t)  The  practice, 
however,  has  been  regretted  by  many  judges,(w)  and  the  practice 

*  See  pp.  70,  71.  supra.  (t)  Ettiott  v.  Collier,  3  Atk.  o21. 

(s)  4  Munf.  Rep.  231.  («)  Gill,  in,  etc.,  1  Hagg.  341,  344. 


CH.  III.]  INTESTATE  ESTATES.  75 

Appointment  of  administrators. 

seems  finally  abandoned, (i>)  and  administration  is  only  granted  to 
the  next  of  kin  of  the  wife,  when  they  were  entitled  to  her  effects 
by  settlement. (w)  And  a  similar  rule  obtains  in  many  of  the 
American  States,  (x) 

(5.)  By  next  of  kin,  is  understood  the  nearest  of  blood.  It  is  u 
term  applied,  in  the  la\vs  of  descent  and  distribution,  to  the  nearest 
blood  relatives  of  a  deceased  person,  including  only  those  who  are 
entitled  to  have,  under  the  statute  of  distributions  or  descent. 

(6.)  RENUNCIATION  OR  RELINQUISHMENT.  The  person  who  has 
the  prior  right  to  administer  may  renounce  his  or  her  claim.  If 
the  person  not  specifically  entitled  to  administer  applies  for  letters 
within  seventy-five  days  after  the  decease  of  the  intestate,  he  must 
produce  satisfactory  evidence  that  the  persons  having  the  preference 
(potiores)  have  relinquished  or  renounced  it.(a) 

RENUNCIATION. 

STATE  OF  ILLINOIS,  )  County  court  of  County, 

County.  \  ss  •  term,  A.  D.  18    . 

To  the  Judge  of  said  court : 

I,  A  B,  widow  of  C  D,  late  of  said  county,  deceased,  do  hereby  relinquish 
and  renounce  all  right,  claim  and  preference  which  I  may  have  to  administer 
upon  the  estate  of  him,  the  said  CD.  A  B. 

Dated  ,  18    . 

Witnesses : 

As  to  whom  letters  of  administration  may  be  granted  and 
when.(i) 

Personal  property  of  a  minor  vests  immediately  in  the  next,  of 
kin,  and  there  is  no  necessity  of  taking  out  letters  of  administra- 
tion before  instituting  suit  in  equity  against  the  sureties  of  a  guar- 
dian for  a  discovery  and  an  account  on  the  ground  of  mal-adminis- 
'tration.(c) 

Husband  may  administer  on  his  wife's  estate. (d) 

(v)  Fielder  v.  Hunger,  3  Hagg.  769 ;        (a)  %  19,  R.  S.  1874,  p.  108. 
1  Wms.  Ex'rs,  360.  (6)  Schnell  v.  City  of  Chicago,  38  111. 

(w)  Bunchley  v.  Lynn,  9  Eng.  L.  &    382. 
Eq.  583  ;  S.  C.,  16  Jur.  292.  (c)  Lynch  v.  Eotan,  39  111.  15. 

(x)  Ward  v.   Thompson,  6  Gill.  &  J.        (d)  Townsend  v.  Radcliffe,  44  111.  446. 
349 ;  Sheldon  v.  Wright,  5  N.  Y.  497 ; 
Patterson  v.   High,    8    Ired.   Eq.   52; 
H'liiorn  v.  Hector,  id.  55;   Randall  v. 
trader,  17  Ala.  333. 


76  INTESTATE    ESTATES.  [CH.  III. 

Appointment  of  administrators. 

Issue  of  a  void  marriage  have  no  right  to  administer  on  the  estate 
of  the  deceased  father, (e) 

The  lapse  of  seven  years  after  the  death  of  a  decedent  constitutes 
a  bar  to  granting  letters  of  administration,  but  it  may  be  removed 
by  showing  circumstances  which  prevented  an  earlier  application.(/) 

Surviving  partner  of  the  intestate  should  not  be  appointed  ad- 
ministrator.^) Administration  is  not  always  necessary.  (#)  Although 
letters  of  administration  may  be  granted  irregularly,  yet  the  court 
having  jurisdiction,  the  person  appointed  is  administrator  de  facto, 
and  the  regularity  of  appointment  cannot  be  questioned  collater- 
ally.^) 

25.  VENUE  OR  THE  PROPER  COUNTY.  A  grant  of  administration  in 
one  country,  confers  on  an  administrator  no  title  to  the  property  of 
the  intestate  situate  in  another  country.  He  has  no  authority  over, 
nor  is  he  responsible  for,  any  effects  of  the  estate  that  may  be 
beyond  the  jurisdiction  appointing  him.  If  he  wishes  to  reach 
property,  or  collect  debts  belonging  to  the  estate  in  a  foreign  country, 
he  must  there  obtain  letters  of  administration,  and  give  such  security 
and  become  subject  to  such  regulations  as  its  laws  may  prescribe. (i) 

THE  PROPER  COUNTY  in  which  to  take  out  letters  of  administra- 
tion, in  case  of  non-residents  dying,  leaving  lands  in  this  State,  is 
the  county  where  such  lands  or  a  part  of  them  lie.(/) 

2C.  PRACTICE  —  HOW  TO  BE  APPOINTED  ADMINISTRATOR.  Obtain 
a  petition  and  bond  in  blank  from  the  clerk,  fill  them  out,  write  on 
the  back  of  the  petition  the  names  of  two  persons  to  serve  as 
appraisers,  file  them  with  the  clerk,  pay  his  costs.  Have  at "  least 
two  securities  sworn,  examined  and  accepted  by  the  court.  Present 
the  bond  in  a  penalty  of  double  the  value  of  the  estate  to  be  admin- 
istered, get  it  approved  and  take  the  oath  of  office. 

Previous  to  the  appointment  of  administrators,  the  proof  of  intes- 
tacy should  be  made  to  the  court.  This  proof  may  be  made  by  any 
person  cognizant  of  the  facts,  usually  by  the  person  applying  for 
letters.  This  is  indispensable  to  any  action  by  the  court. 

(e)  Myatt  v.  Myatt,  44  111.  473.  (j)  Bowies'  Heirs  v.  Rouse,  Adm'r,  4 

(/)  Fitzgerald  v.  Glancy,  49  111.  465.  Gilrn.  409  ;  see  p.  14,  supra.  Where  a 

(g)  Heward  v.  Slagle,  52  111.  336.  court  of  probate  of  one  county  has  ac 

(A)  Wight  v.  Wallbaum,  39  111.  555;  quired  a  full  jurisdiction  of  an  estate, 

Duffin  v.  Abbott,  48  id.  17.  it  retains  that  jurisdiction  until  the 

(i)  Judy  v.  Kelley,  11  111.  211;  see  estate  shall  be  fully  administered. 

Harrison  v.  Nixon,  %  Peters,  483  ;    10  The  People  v.  White,  11  111.  342. 

id.  408  ;  4  How.  467,  and  Hid. ;  Hill's 

Oh.  Pr.  23 


3H.  III.J  INTESTATE   ESTATES.  77 

Appointment  of  administrators. 

It  is  the  usual  practice  to  present  a  petition  to  the  court,  praying 
that  letters  be  granted.    The  following  form  is  in  general  use : 

27.  PETITION  FOR  LETTERS  OF  ADMINISTRATION. 

In  the  matter  of  the  estate  of  , )  pe/.vvon  of 

deceased,  for  letters  of  administration,  j 

To  the  Hon.  ,  Judge  of  the  county  court  of  county,  in  the  State  of 

Illinois  : 

The  petition  of  the  undersigned  respectfully  represents  that 

late  of  the  county  of  aforesaid,  departed  this  life  at  ,  in  said  county 

on  or  about  the  day  of  ,  A.  D.  18     ,  leaving  no  last  will  and  testa 

ment,  as  far  as  your  petitioners  know  or  believe. 

And  this  petitioner  further  shows  that  the  said        died  seized  and  possessed 
of  real  and  personal  estate,  consisting  chiefly  of  ,  all  of  said  personal 

estate  being  estimated  to  be  worth  about         dollars  ;  that  said  deceased  left  him 
surviving  ,  his  widow,  and  ,  his  children,  his  only  heirs  ;  that  your 

petitioner  (being  of  said  deceased,  and)  believing  that  the  said  estate 

should  be  immediately  administered,  as  well  for  the  proper  management  of 
said  ,  as  for  prompt  collection  of  assets  by  virtue  of  rights  under 

the  statute,  therefore  pray  that  your  honor  will  grant  letters  of  administration 
to  ,  in  the  premises,  upon  taking  the  oath  prescribed  by  the  statute, 

and  entering  into  bond,  in  such  sums  and  with  securities  as  may  be  approved 
by  your  honor. 

28.  PROOF  OF  INTESTACY.(&  )     Before  letters  of  administration 
issue,  the  person  applying  must  make  and  file  an  affidavit  with  the 
proper  county  clerk,  setting  forth,  as  near  as  may  be,  the  date  of  the 
death  of  deceased,  the  probable  amount  of  the  personal  estate,  and 
the  names  of  the  heirs  and  widow,  if  known.(Z) 

AFFIDAVIT  OF  DEATH  AND  INTESTACY. 

STATE  OF  ILLINOIS,) 

County.     [  * 

,  being  duly  sworn,  deposeth  and  saith,  That  ,  late  of  ,  in 

the  county  of  ,  departed  this  life  at  ,  in  said  county,  on  or  about 

the  day  of  ,  A.  D.  18         ,  and  that  he  died  leaving  no  last  will  and 

testament,  to  the  best  of  knowledge  and  belief,  and  that  deceased  left 

surviving  him  ,  his  widow,  and  the  following  named  children  (as  the  case 

may  be) : 

29.  BOND.     Upon  this  proof  being  made,  the  court  appoints  the 
person,   if  entitled,  administrator  of  the  goods,   chattels,   rights, 
credits  and  effects  of  the  deceased,  and  requires  him  to  enter  into 

(&)  Laws  of  1859,  ^9,  p.  95;    §§  18,     be  made  before  the  court;  this   may 
20.  R   S.  1874,  pp.  107,  108.  be  by  affidavit.     See  Cothran's  Aun'd 

(I)  The  act  of  1872  requires  proof  to     Stats.,  1880,  p.  53. 


78  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

bond  in  the  sum  of  double  the  value  of  the  estate,  with  good  and 
sufficient  security,  to  be  approved  by  the  court.  The  judge  is  to 
ascertain  the  value  of  the  estate,  in  such  manner  as  shall  be  satis- 
factory to  himself.  If,  at  any  time  afterward,  the  court  shall  be 
advised  of  the  insufficiency  of  the  bond,  either  as  to  the  amount  or 
the  security,  the  administrator  may  be  summoned  to  show  cause 
why  he  should  not  give  additional  or  other  security ;  and  in  case  he 
should  refuse  or  fail  to  give  such  new  bond,  his  letters  may  be 
revoked,  and  administration  granted  to  some  other  person,  who  will, 
in  effect,  be  administrator  de  bonis  non.  The  form  of  the  bond  is 
prescribed  in  the  statute  of  wills,  and  must  be  substantially  followed, 
as  near  as  the  case  will  admit.  The  bond  should  be  approved  by 
the  judge,  and  filed  in  the  clerk's  office.  The  form  of  this  bond  is 
as  follows: 

BOND  BY  ADMINISTRATOR. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  we,  A  B,  C  D  and  E  F,  of  the 
county  of  ,  and  State  of  Illinois,  are  held  and  firmly  bound  unto  the 

people  of  the  State  of  Illinois,  in  the  penal  sum  of  dojlars,  current  money 
of  the  United  States,  which  payment,  well  and  truly  to  be  made  and  performed, 
we,  and  each  of  us,  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly,  severally  and  firmly  by  these  presents. 

Witness  our  hands  and  seals,  this  day  of  ,  A.  D.  18 

The  condition  of  the  above  obligation  is  such,  that  if  the  said  A  B,  adminis- 
trator of  all  and  singular  the  goods  and  chattels,  rights  and  credits  of  «T  K, 
deceased,  do  make,  or  cause  to  be  made,  a  true  and  perfect  inventory  of  all  and 
singular  the  goods  and  chattels,  rights  and  credits  of  the  said  deceased,  which 
shall  come  to  the  hands,  possession  or  knowledge  of  him,  the  said  A  B,  as 
administrator,  or  to  the  hands  of  any  person  or  persons  for  him ;  and  the  same 
so  made,  do  exhibit,  or  cause  to  be  exhibited,  in  the  county  court  for  the  said 
county  of  ,  agreeably  to  law ;  and  such  goods  and  chattels,  rights  and 

credits,  do  well  and  truly  administer  according  to  law,  and  all  the  rest  of  the 
said  goods  and  chattels,  rights  and  credits,  which  shall  be  found  remaining 
upon  the  account  of  the  said  administrator,  the  same  being  first  examined  and 
allowed  by  the  court,  shall  deliver  and  pay  unto  such  person  or  persons,  re- 
spectively, as  may  be  legally  entitled  thereto  ;  and  further,  do  make  a  just  and 
true  account  of  all  his  actings  and  doings  therein,  when  thereunto  required  by 
the  said  court ;  and  if  it  shall  appear  that  any  last  will  and  testament  was 
made  by  the  deceased,  and  the  same  be  proved  in  court,  and  letters  testamen- 
tary or  of  administration  be  obtained  thereon,  and  the  said  A  B  do,  in  such 
case,  on  being  required  thereto,  render  and  deliver  up  the  letters  of  adminis- 
tration granted  to  him  as  aforesaid,  and  shall  in  general  do  and  perform  all 
other  acts  which  may  at  any  time  be  required  of  him  by  law,  then  this  obliga, 
lion  to  be  void  ;  otherwise  to  remain  in  full  force  and  virtue. 


CH.  1IJ.J  INTESTATE   ESTATES.  79 

Appointment  of  administrators. 

This  bond  must  be  signed  and  sealed  by  the  administrator  and 
his  securities,  and  attested  by  the  clerk  and  filed,  (m) 

30.  LETTEKS  OF  ADMINISTRATION.* 

STATE  OP  ILLINOIS,  ) 
County  of  .  f  ss 

The  People  of  the  State  of  Illinois,  to  all  to  whom  these  presents  shall  come, 
greeting  : 

Know  ye,  that  whereas  ,  late  of  the  county  of  and  State  of  Illi- 

nois, died  intestate,  as  it  is  said,  on  or  about  the        day  of  ,  A.  D.  18    , 

having  at  the  time  of  his  decease  duly  made  and  published  ,  personal 

property  in  this  State,  which  may  be  lost,  destroyed  or  diminished  in  value,  if 
speedy  care  be  not  taken  of  the  same  ;  to  the  end,  therefore,  that  said  property 
may  be  collected  and  preserved  for  those  who  shall  appear  to  have  a  legal 
right  or  interest  therein,  we  do  hereby  appoint  ,  of  the  county  of 

and  State  of  Illinois,  administrator  of  all  and  singular  the  goods  and  chattels, 
rights  and  credits,  which  were  of  the  said  at  the  time  of  h  decease : 

with  full  power  and  authority  to  secure  and  collect  the  said  property  and 
debts  wheresoever  the  same  may  be  found  in  this  State  ;  and  in  general  to  do 
and  perform  all  other  acts,  which  now  are  or  hereafter  may  be  required  of 
by  law. 

Witness  ,  clerk  of  the  county  court  of  said  county,  and  the  seal  thereof, 
at  the  of  ,  in  said  county,  this  day  of  ,  A.  D.  18  . 

,  Clerk. 
STATE  OF  ILLINOIS,  ) 

County  of  .  f  8* 

I,  A  B,  clerk  of  the  county  court  of  county,  in  the  State  aforesaid,  do 

hereby  certify  that  the  within  is  a  true  and  correct  copy  of  the  letters  of  admin- 
istration, with  will  annexed,  issued  to  ,  now  in  force,  and  properly  on  file 
in  my  office. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  the  seal  of  said 
county  court,  this  day  of  ,  A.  D.  18  . 

,  Clerk. 

31.  THE  OATH.  The  person  appointed  must  take  an  oath  to  per- 
form all  acts  required  of  him  as  administrator  by  law,  public  admin- 
istrators excepted.  It  is  as  follows  : 

OATH   OP   ADMINISTRATOR. 

I  do  solemnly  swear  (or  affirm)  that  I  will  well  and  truly  administer  all  and 
singular  the  goods  and  chattels,  rights,  credits  and  effects  of  A  B,  deceased, 
and  pay  all  just  claims  and  charges  against  his  estate,  so  far  as  his  goods., 
chattels  and  effects  shall  extend,  and  the  law  charge  me  ;  and  that  I  will  do  and 
perform  all  other  acts  required  of  me  by  law,  to  the  best  of  my  knowledge  and 
abilities.(Ti) 

(m)  See  §  23,  R.  S.  1874,  p.  108.  (n)  See  §  22,  id. 

*  These  letters  are  to  t»e  arl  anted  mutatis  mutnmli*  to  all  cases  of  administration. 
See  §  21,  R.  S.  1874,  p.  108;  Coihrau's  Annotated  R.  S.,  p.  53. 


80  INTESTATE   ESTATES.  [CH.  III. 

Appointment  of  administrators. 

Administrator  with  the  will  annexed,  must  enter  into  the  required 
bond: 

32.  BOND  BY  ADMINISTRATOR,  WITH  WILL  ANNEXED. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  we,  A  B,  C  D,  and  E  F,  of  the 
county  of  ,  and  State  of  Illinois,  are  held  and  firmly  bound  unto  the  peo- 

ple of  the  State  of  Illinois,  in  the  penal  sum  of  dollars,  current  money  of 

the  United  States,  which  payment,  well  and  truly  to  be  made  and  performed, 
we,  and  each  of  us,  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly,  severally  and  firmly  by  these  presents. 

Witness  our  hands  and  seals,  this  day  of  ,  A.  D.  18     . 

The  condition  of  the  above  obligation  is  such,  that,  if  the  above  bounden  A  B, 
executor  of  the  last  will  and  testament  of  G  H,  deceased  (or  administrator  with 
the  will  annexed,  of  G  H,  deceased,  as  the  case  may  be),  do  make,  or  cause  to  be 
made,  a  true  and  perfect  inventory  of  all  and  singular  the  goods  and  chattels, 
rights  and  credits,  lands,  tenements  and  hereditaments,  and  the  rents  and 
profits  issuing  out  of  the  same,  of  the  said  deceased,  which  have  or  shall  come 
to  the  hands,  possession  or  knowledge  of  the  said  A  B,  or  into  the  possession 
of  any  other  person  for  him,  and  the  same  so  made  do  exhibit  in  the  county 
court  for  the  said  county  of  ,  as  required  by  law  ;  and  also  make  and 

render  a  fair  and  just  account  of  his  actings  and  doings  as  such  executor  (or 
administrator)  to  said  court,  when  thereunto  lawfully  required  ;  and  to  well 
and  truly  fulfill  the  duties  enjoined  on  him  in  and  by  the  said  will ;  and  shall , 
moreover,  pay  and  deliver  to  the  persons  entitled  thereto,  all  the  legacies  and 
bequests  contained  in  said  will,  so  far  aa  the  estate  of  the  said  testator  will 
thereunto  extend,  according  to  the  value  thereof,  and  as  the  law  shall  charge 
him ;  and  shall,  in  general,  do  all  other  acts  which  may,  from  time  to  time,  be 
required  of  him  by  law,  then  this  obligation  to  be  void ;  otherwise  to  remain 
in  full  force  and  virtue.(o) 

33.  FORM  OF  OATH  OF  ADMINISTRATOR,  WITH  WILL  ANNEXED. 

I  do  solemnly  swear  (or  affirm)  that  this  writing  contains  the  true  last  will 
and  testament  of  the  within  named  A  B,  deceased,  so  far  as  I  know  or  believe  ; 
and  that  I  will  well  and  truly  execute  the  same,  by  paying  first  the  debts  and 
then  the  legacies  mentioned  therein,  as  far  as  his  goods  and  chattels  will  there- 
unto extend,  and  the  law  charge  me ;  and  that  I  will  make  a  true  and  perfect 
inventory  of  all  such  goods  and  chattels,  rights  and  credits,  as  may  come  to  my 
hands  or  knowledge,  belonging  to  the  estate  of  the  said  deceased,  and  render  a 
fair  and  just  account  of  my  executorship,  when  thereunto  required  by  law,  to- 
the  best  of  my  knowledge  and  abilities  :  so  help  me  God.(^)) 

34.  ADDITIONAL  BOND.  Where  a  new  bond  is  required  to  be 
Efiven  by  the  administrator,  the  formal  part  should  be  as  prescribed 
in  other  cases,  with  a  condition  thereto,  in  the  form  prescribed  as 
follows:  (q) 

(o)  See  §  28.  R.  S.  1874.  p.  108.  (7)  See   §    1,   act   1879  ;    Cothran's 

(p)  |  6,  R.  S.  1874,  p.  105.  Stats.,  p.  1016. 


CH.  III.]  INTESTATE   ESTATES.  til 

Appointment  of  administrators. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  above 
bounden  A  B,  executor  of  the  last  will  and  testament  of  J  K,  deceased  (or 
administrator  of  the  goods  and  chattels,  rights  and  credits -of  J  K,  deceased), 
has  heretofore  executed  a  bond,  payable  to  the  people  of  the  State  of  Illinois, 
and  conditioned  for  the  discharge  of  his  duties  as  executor  (or  administrator) 
as  aforesaid,  which  said  bond  bears  date  on  the  day  of  ,  A.  D.  18  ; 

and  whereas,  by  an  order  of  the  county  court,  made  on  the  day  of  , 

A.  D.  18  ,  other  bond  and  security  has  been  required  of  "the  said  executor  (or 
administrator).  Now,  therefore,  if  the  said  executor  (or  administrator)  shall 
well  and  truly  have  kept  and  performed,  and  shall  well  and  truly  keep  and 
perform,  the  condition  of  the  bond  first  given  as  aforesaid,  in  all  respects 
according  to  law,  and  shall  ill  all  respects  have  performed,  and  shall  continue 
to  perform,  the  duties  of  his  office  as  aforesaid,  then  this  obligation  to  be  void ; 
otherwise  to  remain  in  full  force  and  virtue. 

Which  bond  must  be  signed,  sealed,  approved,  filed  and  recorded 
as  above. 

And  in  cases  where  the  form  prescribed  by  the  statute  does  not 
cover  the  particular  state  of  facts,  the  statutory  forms  are  to  be 
followed,  so  far  as  applicable,  with  such  variations  as  will  be  adapted 
to  the  particular  case.(g') 

35.  DECISIONS  RELATIVE  TO  SUCH  BONDS.  For  a  breach  in 
the  condition  of  the  bond  of  an  executor,  an  action  may  be  main- 
tained against  any  one  or  more  of  the  obligors  of  the  bond.  The 
common  law  in  this  particular  is  changed  by  statute.(r)  The 
statute  gives  an  action  against  the  obligors  in  an  executor's  bond  in 
cases  of  neglect  or  refusal  to  comply  with  any  of  the  provisions  of 
the  law  governing  the  conduct  of  the  executor,  as  also  in  cases  where 
one  or  more  of  the  covenants  in  his  bond  are  violated.(r)  For  lia- 
bility of  security  on  administrator's  bond,  and  for  the  conclusive 
effect  on  security  of  an  order  of  the  probate  court  on  the  adminis- 
trator to  pay  over  moneys  in  his  hands  to  the  heir.(s) 

MERGER.  If  a  judgment  has  been  entered  on  an  executor's  or 
administrator's  bond  in  the  circuit  court,  it  would  merge  the  latter 
in  the  former,  and  the  judgment  would  stand  as  security  for 
any  additional  breaches  of  the  bond.  In  such  case,  the  remedy 
would  be  to  suggest  a  breach,  and  have  damages  assessed  in  that 
court. (t)  For  effect  of  giving  new  bonds,  or  of  revocation  of  the 
letters  of  administration,  on  liabilities  of  securities  to  the  old  bond.(w) 

(a)  $  34,  R.  S.  1874,  p.  110.  (f,  People  v.  Summers,  16  111.  173. 

(r)  'People  v.  Miller,  1  Scam.  83.  (u)  See  The  People  v.  Lott,  27 111..215 

(«)  See  Ralston  v.  Wood,  15  111.  159. 

11 


82  INTESTATE   ESTATES.  [CH.   Ill, 

Appointment  of  administrators. 

36.  FOREIGN  EXECUTORS  AND  ADMINISTRATORS.  When  any  per- 
son has  proved  or  may  prove  the  last  will  and  testament  of  any 
deceased  person,  and  taken  on  him  the  execution  of  said  will,  or  has 
obtained  or  may  obtain  administration  of  the  estate  of  an  intestate 
m  any  State  in  the  United  States,  or  in  any  territory  thereof,  such 
person  shall  be  enabled  to  prosecute  suits,  to  enforce  claims  of  the 
estate  of  the  deceased,  or  to  sell  lands  to  pay  debts,  in  any  court  in 
this  State,  in  the  same  manner  as  if  letters  testamentary  or  of 
administration  had  been  granted  to  him  under  the  provisions  of  the 
laws  of  this  State ;  Provided,  that  such  person  shall  produce  a  copy 
of  the  letters  testamentary  or  of  administration,  authenticated  in 
the  manner  prescribed  by  the  laws  of  congress  of  the  United  States 
for  authenticating  the  records  of  judicial  acts  in  any  one  State,  in 
order  to  give  them  validity  in  other  States;  And  provided,  that  said 
executor  or  administrator  shall  give  a  bond  for  costs,  as  in  oase  of 
other  non-residents.(t>) 

A  CITIZEN  OF  ANOTHER  STATE,  in  which  administration  has  been 
granted  on  an  estate,  may  come  to  this  State  and  cause  administra- 
tion to  be  taken  out  here,  a  claim  to  be  allowed,  and  real  estate  sold 
for  its  payment ;  and,  in  such  case,  it  is  not  necessary  to  show  that 
the  personal  estate  in  the  other  State  has  been  exhausted.(w) 

Nothing  contained  in  the  preceding  section  shall  be  so  construed 
as  to  apply  to  cases  where  administration  is  obtained  upon  the  estate 
of  any  intestate,  nor  where  letters  testamentary  are  granted  in  this 
State ;  and  when,  after  any  suit  is  commenced  by  any  administrator 
or  executor,  under  the  provisions  of  the  preceding  section,  and 
oefore  final  judgment  thereon,  administration  is  had,  or  execution 
undertaken  within  this  State,  under  the  laws  of  the  same,  upon  the 
estate  of  any  decedent,  upon  suggestion  of  such  fact,  entered  of 
record,  the  said  resident,  administrator  or  executor  shall,  upon 
motion,  be  substituted  as  party  to  such  suit ;  and  thereupon  the 
court  shall  proceed  to  hear  and  determine  the  same,  as  if  it  had  been 
originally  instituted  in  the  name  of  the  said  resident,  executor  or 
administrator,  and  the  benefits  of  the  judgment,  order  or. decree- 
shall  inure  to  him,  and  be  assets  in  his  hands,  (a;) 

(o)  %  42,  act  April   1,  1872;  Reefer        (w)  Rosen  thai  v.  Rerdck,  44  111.  202. 
v.  Mason,  36  111.   406;    see   page  294,        (x)  %  43,  K.  S.  1874,  p.  112. 
infra;  Cothran's  Stats.,  p.  59. 


OH.  III.  J  INTESTATE    ESTATES.  83 


Powers  and  duties  of  administrators. 


SECTION   III. —  THE    POWERS,    DUTIES,    EIGHTS   AND    LIABILITIES   OF 
ADMINISTRATORS. 

1.  The  scope  of  the  office  of  administrator. 

2.  Administrators  are  personal  representatives  of  their  intestates. 

3.  Decisions  of  the  supreme  court  of  the  State  of  Illinois. 

1.  THE  ADMINISTRATOR  REPRESENTS  THE  PERSON  of  his  intestate 
in  respect  to  his  personal  estate,  the  whole  of  which,  generally  speak- 
ing, vests  in  the  administrator  on  the  grant  of  letters  of  adminis- 
tration, and  such  grant  has  relation  to  the  time  of  the  intestate's 
death,  (y] 

The  interest  which  ihe  administrator  has  in  the  personal  estate  is 
only  temporary,  and  qualified.  He  is  intrusted  merely  with  the 
custody  and  distribution  of  the  effects.^) 

As  the  jurisdiction  of  the  administrator  extends  only  to  the 
"  goods  and  chattels,  rights  and  credits,  which  were  of  the  person  at 
the  time  of  his  death,"  it  may  be  important  to  know  what  the  terms 
"  goods,"  "  chattels, "  "  rights  "  and  "  credits  "  embrace.  Goods 
strictly  consist  of  movable  inanimate  property,  such  as  may  attend 
a  man's  person  wherever  he  goes.  The  term  chattels  includes  all 
that  is  expressed  by  the  word  goods,  and  something  more ;  it  in- 
cludes all  kinds  of  property,  except  the  freehold  or  things  which  are 
a  parcel  of  it.  (a) 

RIGHTS  AND  CREDITS,  as  distinguished  from  chattels,  are  mostly 
applicable  to  such  matters  as  lie  in  action,  as  debts  owing  the  intes- 
tate, etc.  The  administrator  succeeds  to  all  such  rights  of  action 
against  third  persons  as  the  intestate  had  at  the  time  of  his  death, 
or  would  have  been  entitled  to  if  living.  Some  actions  of  a  per- 
sonal character  die  with  the  person,  as  slander,  case  for  assault  and 
battery  on  the  person  of  the  intestate,  false  imprisonment,  etc.  By 
actions  for  torts  are  meant  actions  on  wrongs,  not  actions  on  con- 
tract. 

2.  ADMINISTRATORS  ARE  THE  REPRESENTATIVES  OF  THE  PER 
SONAL  PROPERTY  of  the  deceased,  and  not  of  his  wrongs,  except  so 
far  as  the  tortious  act  complained  of  was  beneficial  to  the  estate. (b) 

(y)  Toller's  Law  of  Ex'rs,  133.  Com.  (&)  2  Kent's  Com.  416.  See  1  Hill's 

Dig.  Adm.,  B.  10,  11;  Coke  Litt.  209.  C.  L.,  p.  899  ;  2  id.,  p.  228  ;  §  123.  act 

(z)  Toller's  Law  of  Ex'rs,  134.  April  1,  1872  ;  Smith  v.  Archer,  53  111. 

(rt)  2  Bl.  Com.  384 ;  1  Bouv.  Inst ;  see  241  ;  5$  122,  R.  S.  1874,  p.  126  ;  Cotli- 

chaps.  vi  and  x,  infra.  rail's  Anii'd  Stats.,  1880,  p.  80. 


84-  INTESTATE   ESTATES.  [CH.  III. 

Powers  and  duties  of  administrators. 
3.   DECISIONS  OF  THE  SUPREME  COURT  OF  THE  STATE  OF  ILLINOIS. 

These  general  principles  are  fully  illustrated  by  exhaustive  opinions 
of  the  supreme  court,  to  which  we  refer,  and  which  we,  assisted  by 
the  digests,  collate  for  the  purpose  of  this  work. 

An  administrator  or  an  executor,  so  long  as  he  retains  his  office, 
is  the  sole  representative  of  the  personal  estate  of  the  deceased,  (c) 

THE  ACTS  OF  AN  EXECUTRIX,  rightfully  done  in  her  official  cha- 
racter, are  binding  upon  the  estate  which  she  represents. (d) 

AN  EXECUTOR,  ADMINISTRATOR  OR  GUARDIAN  may  dispose  of  the 

personal  estate  or  assets  of  his  testator,  intestate  or  ward,  to  a  bona 
fide  purchaser,  for  a  valuable  consideration,  and  the  contract  will  be 
obligatory,  unless  the  purchaser  knows,  or  has  good  reason  to  sus- 
pect, that  the  sale  is  made  with  a  design  to  misapply  the  funds,  to 
the  prejudice  of  those  interested  in  the  estate ;  and  the  purchaser  is 
not  bound  to  see  to  the  proper  application  of  the  money,  (e) 

MAY  CALL  UPON  A  FORMER  ADMINISTRATOR  TO  ACCOUNT.     Under 

our  statute,  the  authority  of  an  administrator  de  bonis  non  to  call 
upon  a  former  administrator,  whose  letters  have  been  revoked,  to 
account  fully  for  his  administration  of  the  estate,  is  clear  and 
unmistakable,  (/ ) 

AN  ADMINISTRATOR  DE  BONIS  NON,  appointed  to  succeed  an 
administrator  whose  letters  have  been  revoked,  has  authority  to  call 
upon  the  removed  administrator  to  account  fully  for  his  administra- 
tion of  the  estate,  and  may  maintain  all  necessary  actions  for  the 
purpose,  and  may,  moreover,  make  him  answer  in  damages  for  any 
mal-administration  of  the  estate.  Aliter,  where  the  former  admin- 
istrator dies.(<7) 

AN  ADMINISTRATOR  DE  BONIS  NON  has  no  authority  to  call  on 
the  first  administrator,  or,  in  case  of  his  decease,  on  his  personal 
representative,  for  an  account  of  assets  already  administered.  He 
can  only  administer  upon  so  much  of  the  estate  as  remained  unad- 
ministered.  The  distributee  or  creditor  of  the  first  intestate  should 
prosecute  the  representatives  of  the  first  administrator  for  any  waste 
or  misapplication  of  assets.(7i) 

Whatever  is  honestly  done  by  one  acting  in  the  character  of  an 

(e)  Gold  v.  Bailey,  44  111.  491.  (g)  Marsh  v.  The  People,  15  111.  284 

(d)  Greene  v.  Grimshaw,  11  111.  389.  (h)  Rowan  v.  Kirkpatrick,  14  111.  1 ; 

(e)  McConnett  v.  Hod8on,2GtiIm.  640  ;  Newhall  v.  Turney,  id.  338;  Marsh  v. 
Mnkepiece  v.  Moore  5  id.  474.  The  People,  15  id.  284. 

(/)  Duffin  v.  Abbott,  48  111.  17. 


CH.  III.]  INTESTATE   ESTATES.  85 


Powers  and  duties  of  administrators. 


executor  de  son  tort,  and  not  contrary  to  law,  is  binding  between  the 
parties.  A  settlement  made  in  good  faith  with  such  an  executor  is 
valid.(i) 

In  relation  to  covenants,  the  general  rule  is,  that  an  administrator 
has  no  power  to  charge  the  effects  of  his  intestate  by  any  contract 
originating  with  himself ;  and  his  contracts,  in  the  course  of  his 
administration,  or  for  the  debts  of  his  intestate,  render  him  liable  de 
bonis  propriis.(j) 

AN  ADMHSTISTBATOR  MAY  ASSIGN  a  promissory  note  payable  to 
his  intestate,  so  as  to  vest  the  legal  interest  in  the  assignee. (&) 

TITLE  TO  PEBSONAL  ESTATE.  An  administrator  succeeds  to  the 
legal  title  to  the  personal  estate  of  his  intestate ;  and  the  title  takes 
effect  by  relation  from  the  death  of  the  latter,  (k) 

ASSIGNMENT  OF  A  NOTE.  One  of  several  executors  may  assign  a 
promissory  note  made  to  the  testator. (I) 

Executors  and  administrators  may  assign  notes  made  to  the  tes- 
tator or  intestate.  And  if  an  executor  or  administrator  make  or 
indorse  a  note  in  his  own  name,  adding  thereto  "  as  executor,"  "  as 
administrator,"  he  would  be  personally  responsible,  (m) 

An  administrator  may  legally  sell  and  transfer,  at  a  discount, 
negotiable  paper,  taken  for  the  estate,  before  it  falls  due ;  and  allow- 
ance to  the  assignee  of  such  paper  and  payment  thereof,  within  a 
year  of  taking  out  letters,  is  good,  provided  all  the  transaction  was 
in  good  faith.(w) 

If  an  administrator  act  honestly  and  prudently,  though  there  be 
a  loss  to,  or  a  total  diminution  of,  the  intestate's  estate,  he  will  not 
be  liable.(o) 

Where  M.,  an  administrator  in  Illinois,  employed  an  agent  in  Vir- 
ginia to  collect  a  demand  due  the  estate  from  a  resident  in  Virginia, 
and  the  agent  collected  the  money  and  appropriated  it  to  his  own 
use,  and  never  accounted  to  M.  for  it.  Held,  that  M.  was  not  liable 
for  the  loss  of  the  money.(o) 

A  judgment  cannot  be  rendered  against  an  executor  "to  be 
levied  of  the  goods  and  chattels,  rights  and  credits,  lands  and  tene- 
ments of  the  testator  in  the  hands  of  the  executor  to  be  adminis- 
tered." Judgment  can  only  be  rendered  against  the  goods  and 

({)  Rttey  v.  Loughrey,  22  111.  99.  (m)Walker  v.  Craig,  18  111.  125. 

(j)  Vincent  v.  Morrison,  Breese,  175.  (n)  Id.  116. 

(k)  Makepeace  v.  Moore,  5  Gilm.  474.  (o)  Christy  v.  McBride,  1  Scam.  75. 
(f)  Dwighl  v.  Newell,  15  111.  333. 


86  INTESTATE   ESTATES.  [CH.  III. 


Powers  and  duties  of  administrators. 


chattels  of  the  testator,  in  the  hands  of  the  executor  to  be  adminis- 
tered. Neither  the  lands  nor  the  credits  of  a  deceased  person  can 
be  reached  by  execution.(^) 

INTEBEST.  An  administrator  is  chargeable  with  interest  whenever 
he  receives  it,  uses  the  money,  or  unreasonably  retains  it.(  q) 

DILIGENCE.  Administrators  who  have  acted  in  good  faith  in  the 
collection  of  debts  due  their  intestates,  exercising  proper  vigilance, 
directed  by  a  reasonable  judgment,  ought  not  to  be  charged  with 
debts  they  may  have  failed  to  collector) 

One  of  several  administrators  is  liable  for  the  acts  done  by  either, 
while  they  all  continue  in  office.  This  liability  ceases  to  attach  to 
such  of  them  as  are  removed  from  office  for  all  acts  done  after  the 
removaL(s) 

A  person  who  is  at  the  same  time  administrator  and  guardian,  is 
not  allowed  to  apply  the  funds  received  in  one  capacity  to  the  inter- 
ests of  the  other. (t) 

THEIE  EIGHTS.  An  administrator  has  the  legal  title  to  the  per- 
sonal estate  of  the  decedent,  as  a  trustee  and  for  a  particular  pur- 
pose ;  but  when  the  debts  are  paid  the  residue  of  such  estate  belongs 
to  the  heir.(w) 

COMPKOMISE  OF  DEBTS.  If  an  administrator  settles  a  claim 
against  a  debtor  to  the  estate  in  good  faith,  his  action  cannot  be 
called  in  question  by  a  subsequent  administrator. (t?) 

The  administrator  has  power  to  compromise  or  stipulate  for  the 
dismissal  of  a  suit  brought  to  recover  damages  for  the  death  of 
intestate,  caused  by  negligence,  (w) 

THEIK  DUTIES.  It  is  the  duty  of  administrators  to  interpose  the 
presumptions  and  positive  limitations  of  law  against  claims  pre- 
sented, for  allowance ;  but  their  omission  to  do  so  will  not  entirely 
debar  others  affected  by  the  neglect  from  all  protection,  (z) 

SALE  MUST  BE  PUBLIC.  An  administrator  has  no  power  to  sell 
the  personal  property  of  his  intestate  at  private  sale.(y) 

FOE  PKOFITS.  An  administrator,  like  a  trustee,  must  account  to 
the  estate  for  any  profits  arising  out  of  the  use  of  its  funds;  and  he 

(p)  Greenwood  v.  Spttler,  2  Scam.  502.  (w)  Henchey  v.  City  of  Chicago,  41 

(q)  Rowan  v.  Kirkpatrick,  14  111.  1.  111.  136. 

(r)  Id.  2.  (a;)  McCoy  v.  Morrow,  18  111.  519 ; 

(*)  Mnrnih  v.  The  People,  15  111.  284.  Unknown   Heirs   of    Langworthy   v. 

(t)  Stillman  v.  Young,  16  111.  318.  Baker,  23  id.  484. 

(u)  Lewis  v.  Lyons,  13  111.  117.  (y)  Burnap  v.  Dennis,  3  Scam.  478. 

(0)  Short  v.  Johnson,  25  111.  489. 


UH.  III.]  INTESTATE   ESTATES.  87 


Powers  and  duties  of  administrators. 


should  satisfy  claims  with  the  smallest  amount  of  assets,  as  by  the 
purchase  of  bank  bills  at  a  discount.  And  his  reasonable  labor  and 
expenses  for  that  object,  or  interest  upon  the  use  of  his  own  funds, 
should  be  allowed  against  the  estate,  (z) 

NEGLECT  TO  DEFEND  —  SUKETIES  LIABLE.  If  the  administrator 
has  been  guilty  of  laches  in  not  defending  a  suit  at  law,  the  remedy 
is  on  his  bond.(a) 

Foreign  administrators  cannot  sue  in  the  courts  of  this  State,  (b) 

The  law  is  now  changed  so  as  to  allow  foreign  executors  and  ad- 
ministrators to  sue  in  the  courts  of  this  State.(c) 

The  act  of  the  legislature  giving  foreign  administrators  the  power 
"  to  prosecute  suits  in  any  court  in  this  State,"  includes  the  power 
to  sue  out  an  execution  on  a  judgment  rendered  in  favor  of  the 
intestate  in  his  life-time. (d) 

How  MADE  A  PAKTY.  For  mode  of  procedure  to  make  an  execu- 
tor or  administrator  a  party  on  the  death  of  plaintiff  in  an  attach- 
ment suit,  see  Singleton  v.  Wofford.(e) 

PRACTICE.  A  claim  against  the  estate  of  the  decedent  should  be 
presented  either  on  the  notice  of  his  representative  or  of  the  claim- 
ant ;  and,  if  not  allowed  at  the  time  fixed  for  hearing,  should  be 
continued  to  a  day  certain  or  withdrawn,  so  that  the  claim  shall 
not  be  allowed  against  the  estate  without  giving  the  executor  or 
administrator  an  opportunity  to  appear  and  contest.  (/) 

Administrators  of  the  estate  of  persons  who  died  before  the  act 
of  1823,  regulating  administrations,  etc.,  cannot  be  compelled  to  pay 
claims  against  the  estate  according  to  that  act,  but  they  are  gov- 
erned by  the  law  as  it  existed  before  that  act,  in  respect  to  judg- 
ments obtained  against  the  person  in  his  life-time,  upon  whose 
estate  they  are  administering,  (g) 

If  one  of  two  administrators  loans  the  money  of  the  estate,  he 
does  it  upon  his  own  responsibility,  and  an  action  to  recover  it 
should  be  brought  in  his  own  name  alone. (//) 

If  an  executor  fail  or  refuse  to  comply  with  the  order  of  the 
court  of  probate,  requiring  him  to  pay  over  to  the  heirs  and  devi- 

(z)  Wingate  v.  Pool,  25  111.  118.  (/)  Propst  v.  Meadows,  13  111.  157 ; 

(a)  Gold  v.  Bailey,  44  111.  491.  Reitzell  v.  Miller,  25  id.  67. 

(6)  The  People  v.  Peck,  3  Scam.  118.        (g)  Jones'  Adm'rs  v.  Bond,  Breese, 

(C)  §  42,  act  April  1,  1872.  223. 

((f)  Keefer  v.  Mason,  36  111.  406.  (K)  Thornton  v.  Smiley,  Breese,  13. 

(«)  3  Scam.  577. 


88  INTESTATE   ESTATES.  [CH.  III. 

Powers  and  duties  of  administrators. 

sees  their  distributive  portions  of  the  estate,  the  remedy  is  by 
attachment  for  contempt  of  court.(i) 

Notwithstanding  the  act  of  1823,  regulating  the  distribution  of 
an  intestate's  estate,  a  judgment  obtained  before  that  time  against 
the  intestate  in  his  life-time  is  entitled  to  preference  in  the  payment 
of  his  debts  out  of  his  personal  estate,  even  if  the  estate  be  insol- 
vent^ /) 

APPEARANCE  BY  HEIRS.  Heirs  appearing  before  the  county 
court,  by  their  guardian,  to  contest  the  validity  of  claims  against 
the  estate  of  their  ancestor,  should  defend  in  the  name  of  the  ad- 
ministrator; and  an  appeal  to  the  circuit  court,  if  taken  by  the 
opposite  party,  should  bring  the  administrator  only  into  that  court, 
and  the  heirs  may  equally  contest  there.(&) 

Whatever  defense  an  administrator  may  be  allowed  to  make 
against  the  claims  or  demands  of  creditors,  may  be  made  by  any 
person  interested  in  the  realty  against  an  application  of  an  adminis- 
trator to  sell  such  realty  for  the  payment  of  the  debts  of  the  intes- 
tate.^) 

Heirs  dissatisfied  with  the  settlement  of  the  estate  by  administra- 
tors should  proceed  by  bill  in  chancery.(w) 

FOBUM.  The  creditor  of  an  estate  is  not  compelled  to  present  his 
claim  to  the  probate  court  for  allowance,  but  may  resort  to  the  cir- 
cuit court  in  the  first  instance  if  that  court  has  jurisdiction. (n) 

KEMOVAL  OF  INCUMBRANCE.  The  administrator  can  apply  for 
an  order  to  sell  the  real  estate  to  pay  debts,  but  he  must  take  the 
estate  as  he  finds  it;  he  cannot  bring  suit  to  remove  an  incum- 
brance.(o)  The  act  of  1857  does  not  change  the  law.(jp) 

When  a  person  renders  service  for  the  benefit  of  the  estate  of  a 
decedent,  at  the  instance  of  the  executrix  thereof,  his  claim  for  com- 
pensation is  not  a  personal  demand  against  the  executrix ;  but,  on 
the  death  of  the  executrix,  may  be  enforced  against  the  estate,  for 
the  benefit  of  which  the  services  were  rendered.(y) 

WARRANTY.  If  an  administrator  takes  upon  himself  to  warrant 
personal  property  sold  by  him,  the  maker  of  the  note  given  for 

(t)  Piggott  v.  Barney,  1  Scam.  145.  (n)  RosentJial  v.  Magee,  41  111.  370 ; 

(j)  Woodworth  v.    Paine's     Adm'fs,     Wells  v.  Miller,  45  id.  33. 

Breese,  294.  (o)  PJielps  v.  FunkTtouser,  39  111.  401. 

(k)  Motsinger  v.  Wolf,  16  HI.  71.  (p)  Cutter  v.  Thompson,  51  111.  390 ; 

(f)  Dorman    v.    Lane,      Adm'r,  1    id.  531 ;  Gridley  v.  Watson,  53  id.  186. 

Gilm.  143.  ( q)  Greene  v.  Grimshaw,  11  111.  389. 

(m)  Heward  v.  Slagle,  52  111.  336. 


CH.  III.]  INTESTATE   ESTATES.  89 

Powers  and  duties  of  administrators. 

such  property  may 'show  failure  of  consideration  under  the  war- 
ran  ty.(r) 

Cannot  submit  a  claim  against  the  estate  to  arbitration.(s) 

PAROL  CONTRACT  WITH  INTESTATE.  In  an  action  against  the  ad- 
ministratrix on  such  a  contract,  plaintiff  must  show  a  readiness  and 
willingness  on  his  part  to  perform,  and  also  a  demand  on  defendant 
for  the  property  contracted  to  be  delivered.^) 

DEVASTA  VIT.  A  judgment  cannot  be  rendered  against  a  security 
in  an  administration  bond,  nor  is  he  liable  to  an  action  until  a  de- 
vastavit  by  a  suit  has  first  been  established  against  the  administra- 
tor^ u) 

The  statute  authorizes  several  actions  on  an  executor's  bond.(v) 

Where  administrators  have  given  several  bonds,  and  there  is  a 
complication  of  interests,  resulting  from  the  death  of  one  of  the 
administrators,  and  of  some  of  the  sureties,  whose  legal  representa- 
tives cannot  be  made  parties  in  a  joint  action  at  law  upon  the 
bonds,  a  court  of  equity  will  entertain  jurisdiction. (w) 

[This  rule  is  now  changed  by  the  act  of  1829.  Purples'  Statutes, 
p.  1218,  §  126;  Scates'  Comp.,  p.  1207.(z)) 

It  is  not  necessary  to  establish  a  devastavit  previous  to  instituting 
a  suit  on  an  executor's  bond.(^) 

In  an  action  on  a  judgment  against  administrators,  suggesting  a 
devastavit,  a  judgment  by  default  admits  the  truth  of  the  allega- 
tions in  the  declaration,  and  a  jury  of  inquiry  is  not  necessary  to 
ascertain  the  damages,  (z) 

The  time  of  the  devastavit  of  an  administrator  is  properly  ascer- 
tained from  the  return  of  nulla  bona  to  the  execution  issued  against 
him  in  his  representative  character,  (a) 

EVIDENCE  THEREOF.  Where  an  administrator,  on  the  sale  of 
property  belonging  to  the  estate,  received  the  notes  of  the  pur- 
chasers with  security,  and  it  resulted  that  the  principals  and  sureties 
were  insolvent,  this  will  show,  prima  facie,  that  the  administrator 
had  neglected  his  duty,  and  was  guilty  of  a  devastavit.  (b) 

(r)  Welch,  Adm'r,  v.  HoytM  HI.  117.  (w)  The  People  v.  Lott,  27  111.  215. 

(*)  Clark  v.  Hogle,  52  111.  427 ;  Beit-  (*)  §25,  R.  S.  1874,  p.  109. 

zett  v.  Miller,  25  id.  67.  (y)  The  People  v.  Miller,  I  Scam.  83. 

(t)  Pahlman  v.  King,  49  111.  266.  (z)  Greenup  v.    Woodworth,  Breese, 

(u)  Biggs  v.  Postlewait,  Breese,  154.       179. 

(v)  The  People,  use,  v.  Randolph,  24  (a)  Greenup  v.  Brown,  Breese,  193. 

111.  324.  (6)  Gurry  v.  The  People,  54  111.  263. 

12 


90  1XTESTATE   ESTATES.  [CH.  HI. 

Powers  and  duties  of  administrators. 

WHO  MAY  HAVE  A  REMEDY  THEREFOR.  Irt  an  action  upon  an 
administrator's  bond,  at  the  instance  of  a  creditor,  a  prima  facie 
right  of  recovery  exists,  if  it  appears  that  the  person  for  whose  use 
the  suit  is  brought  holds  a  claim  against  the  estate,  and  that  the 
administrator  has  been  guilty  of  a  devastavit  to  the  extent  of  such 
claim.  It  is  not  essential  to  such  right  of  recovery  that  the  creditor 
shall  prove  there  were  no  assets  to  which  he  could  resort  for  the 
satisfaction  of  his  claim. (b) 

LIMITATIONS.  A  claim  was  filed  by  a  creditor  on  the  day  ap- 
pointed by  the  administrator,  and  within  two  years  after  his  letters 
were  granted.  Held,  a  proper  exhibition  of  the  claim,  and  not 
barred,  though,  after  the  lapse  of  two  terms,  it  was  dropped  from  the 
docket  for  a  period  of  three  years  before  final  adjudication.(c) 

The  running  of  the  two  years'  limitation  may  still  be  prevented 
by  presenting  the  claim  or  account  to  the  administrator,  notwith- 
standing the  act  of  February  21,  1859.(d) 

The  claim  having  been  presented  to  the  administrator  within  two 
years,  the  judgment  should  direct  payment  to  be  made  in  due 
course  of  administration,  though  the  suit  was  not  commenced 
within  the  two  years.(e) 

Where  an  administratrix,  in  that  capacity,  loans  money  belonging 
to  the  estate  to  her  husband  by  a  subsequent  marriage,  for  the  use 
and  benefit  of  her  children  by  the  former  husband,  until  the 
youngest  shall  have  reached  majority,  such  children  cannot  main- 
tain an  action  for  the  recovery  of  the  money  so  loaned  upon  the 
majority  of  the  youngest  until  after  an  order  for  distribution  has 
been  obtained.(/) 

And  after  the  order  of  distribution  the  action  should  be  brought 
against  the  administratrix.(/) 

And  the  creditor  can  recover  costs  against  the  estate  in  the  cir- 
cuit court,  after  the  term  appointed  for  prosecuting  claims  in  the 
probate  court,  upon  the  expiration  of  a  year  from  the  taking  out 
letters  of  administration,  if  he  prove  a  demand  before  the  com- 
mencement of  suit.(#) 

Delay  of  three  years  by  a  near  relative  in  presenting  a  claim 

(6)  Curry  v.  The  People,  54  111.  263.          (e)   Wells  v.  Miller,  45  111.  33. 
(c}  Barberov.  Thurman,49IH.283.         (f)Neubrecht  v.  Rantmeyer,  50  111. 

(^Wells  v.  Miller,  45  111.  33 ;  Mason  74. 
v.  Tiffany,  id.  392.  (g)  Rosenthal  v.  Magee,  41  111.  370. 


CH.  III.]  INTESTATE   ESTATES.  91 


Powers  and  duties  of  administrators. 


against  an  estate  may,  under  certain  circumstances,  be  considered 
by  the  jury  in  determining  the  character  of  the  claim. (h) 

EEYIVAL  OF  JUDGMENT.  It  is  erroneous,  in  reviving  a  judgment 
against  an  administrator,  to  award  an  execution  against  the  goods 
and  chattels,  lands  and  tenements  of  the  intestate.  The  proper 
order  would  be  to  revive  the  judgment  against  the  administrator,  to 
be  paid  in  the  due  course  of  administration. (i) 

An  order  of  a  probate  court  against  an  administrator,  ordering 
him  to  pay  over  money  in  his  hands  to  an  heir,  is  conclusive  not 
only  on  the  administrator,  but  on  his  sureties,  though  the  latter 
were  not  parties  to  the  proceedings.  And  if  such  order  is  not  com- 
plied with,  the  person  in  whose  favor  it  is  made  may  have  an  action 
against  the  administrator  and  his  sureties  on  their  bond.  Such  suit 
on  the  bond  is  a  collateral  action,  founded  as  well  upon  the  judg- 
ment as  the  bond ;  and,  where  such  judgment  is  offered  in  evidence, 
it  cannot  be  inquired  into  except  for  fraud.  It  is  as  conclusive  as 
any  other  judgment.(y) 

A  judgment  rendered  in  the  courts  of  a  sister  State  against  an 
administrator  deriving  his  authority  under  and  by  force  of  the  laws 
of  this  State,  who  voluntarily  entered  his  appearance  to  the  action 
in  which  such  judgment  was  pronounced,  cannot  be  enforced  in  our 
courts  against  the  estate  represented  by  such  administrator.  A 
judgment  rendered  under  such  circumstances  is  a  nullity  here,  and 
the  creditor  must  resort  to  his  action  upon  the  original  contract.(&) 

JUDGMENT  NOT  AN  ADMISSION  OF  ASSETS.  A  judgment  in  this 
State  against  an  administrator  is  not  an  admission  of  assets  suffi- 
cient to  satisfy  the  debt ;  its  only  effect  is  to  establish  a  debt  against 
the  estate,  to  be  paid  in  due  course  of  administration. (&) 

But  a  prior  judgment  rendered  on  the  claim  in  the  probate  court 
is  not  affected  by  the  void  judgment  rendered  in  the  circuit  court 
on  the  award.  (?) 

Judgment  against  an  administrator  binds  the  personal  estate.(m) 

Judgment  for  costs  not  to  be  rendered  against  the  administrator 
personally.(w) 

A  judgment  for  costs  cannot  be  rendered  against  an  administra- 

(h)  O'Connor  v.  O'Connor,  52  111.  316.  (J)    Clark  v.  Hogle,  52  111.  427. 

(i)  lurney  v.  Gates,  12  111.  141.  (m)  Gold  v.  Bailey,  44  111.  491. 

( f)  Ralston  v.  Wood,  15  111.  159.  (ri)  Hunter  v.  Bilyeu,  39  111.  368. 
(*)  Judy  v.  Kelley,  11  111.  211. 


92  INTESTATE   ESTATES.  [CH.  IIL 


Powers  and  duties  of  administrators. 


tor  iii  his  personal  character,  but  must  be  rendered  against  him  in 
his  representative  character.(o) 

The  judgment  against  an  administrator,  upon  foreclosure  of  a 
mortgage,  should  be  such  a  judgment  as  could  have  been  rendered 
against  the  mortgagor  had  he  been  living.( p) 

A  circuit  court  has  no  authority  to  render  a  judgment  against  the 
lands  of  an  intestate  in  a  proceeding  in  personam  against  his  ad- 
ministrator, (q) 

It  is  erroneous  to  award  execution  on  a  judgment  against  an 
estate  of  one  deceased,  which  is  founded  on  a  claim  exhibited  and 
allowed  against  it.  The  proper  judgment  in  such  case  is  for  the 
amount  of  the  debt,  and  costs  to  be  paid  in  the  due  course  of  ad- 
ministration.^) 

SCIRE  FACIAS.  A  creditor  having  a  judgment  against  an  admin 
istrator  cannot  sue  out  a  scire  facias  upon  the  judgment  against  an 
heir,  to  make  it  chargeable  upon  the  land.(s) 

An  appeal  bond  by  an  executor,  conditioned  that  he  shall  pay  the 
debt  in  due  course  of  administration,  is  good.(^) 

ASSETS;  WHAT  ARE.  The  amount  recovered  in  the  statutory 
action,  where  the  death  of  a  person  is  caused  by  the  wrongful  act, 
default  or  neglect  of  another,  is  not  to  be  treated  as  part  of  the 
estate  of  the  deceased ;  creditors  do  not  get  any  benefit  from  it.  It 
is  to  be  distributed  among  those  to  whom  the  personal  estate  would 
descend  in  the  absence  of  a  will  according  to  the  statute  of  de- 
scent.^) 

An  administrator  takes  no  estate,  right,  title  or  interest  in  realty. 
He  takes  only  a  power.(v) 

Accruing  rent  descends  to  the  heirs,  and  the  administrator  has  no 
concern  with  it.(w) 

Any  saving  or  accumulations  by  the  administrator,  in  the  man- 
agement of  the  estate,  becomes  assets,  and  liable  to  distribution.^) 

For  a  full  discussion  of  the  rights  of  the  widow,  and  the  conse- 

(0)  Church  v.  Jewett,  1   Scam.  55 ;        (s)  Stone  v.  Wood,  16  111.  177. 
Gfibbons  v.  Johnson,  3  id.  61.  (t)  Mason  v.  Johnson,  24  111.  159. 

(p)  Swiggart  v.  Harbor,  4  Scam.  864.        (u)  City  of  Chicago  v.  Major,  18  111 

(q)  McDowell    v.    Wight,    4    Scam.  349. 
403.  (v)  Smith  v.  McConnell,  17  111.  135. 

(r)  Welch,  Adm'r,  v.  Wallace,  3  Gilm.        (w)  Foltz  v.  Prouse,  17  111.  487.     See 

490 ;  Peck,  Adm'r,  v.  Stevens,  5  id.  127 ;  1  Hill's  C.  L.  463. 
Judy  v.  Kelley,  11  111.  211.  (x)Wingate  v.  Pool,  25  111.  118. 


CH.   III.]  INTESTATE   ESTATES.  93 

Powers  and  duties  of  administrators. 

quences  of  her  electing  to  take  their  value,  instead  of  the  specific 
articles  allowed  by  law,  see  Cruce  v.  Cruce.(y} 

Where  an  administrator  has  purchased  a  CHATTEL  REAL  belonging 
to  his  intestate  in  his  life-time,  and  charged  himself  with  the  rents 
and  profits  thereof,  and  treated  it  as  assets  of  the  estate,  he  will  not 
be  allowed  afterward  to  claim  it  as  his  own  property,  but  must 
account  for  it  as  assets,  (z) 

It  is  his  duty  to  reduce  the  assets  to  money,  and  report  the 
same  to  the  court,  to  be  paid  upon  debts  and  distributed  among  the 
parties  entitled  to  receive  it.(z) 

If  an  executor  loan  the  money  of  the  estate  without  authority  in 
the  will,  it  operates  as  a  devastavit,  and  creditors,  legatees  or  dis- 
tributees may  sue  and  recover  on  his  bond.(z) 

For  necessary  food  and  clothing  furnished  by  an  executor  for  the 
support  of  minor  heirs  having  no  guardian,  he  should  be  allowed 
to  charge  a  reasonable  compensation.(a) 

ADMINISTRATOR  OF  DECEASED  PARTNERS;  SURVIVORS;  RELA- 
TIVE RIGHTS.  Primarily,  the  administrator  has  nothing  to  do  with 
the  firm  assets  and  debts.  The  surviving  partners  take  the  exclu- 
sive title  to  the  former  for  the  payment  of  the  latter.  If  any 
assets  remain  in  their  hands  after  the  payment  of  liabilities,  the 
administrator  takes  the  distributive  share  of  the  deceased.(«) 

But  if  the  survivors  are  guilty  of  delay  or  waste  in  the  settle- 
ment of  the  firm  accounts,  the  administrator  may  interpose  in 
equity  for  an  account  and  the  appointment  of  a  receiver  to  adjust 
and  settle  the  partnership  matters.(#) 

Rent  falling  due  after  lessor's  death  does  not  go  to  the  executor 
or  administrator,  but  to  the  heir.(e) 

Decedent,  while  taking  lumber  by  river  from  Illinois  to  Tennes- 
see, died  on  the  Missouri  shore.  Held,  that,  as  decedent's  domicile 
was  in  this  State,  and  as  he  had  no  other  assets  in  Missouri  or 
Tennessee,  and  that,  as  the  persons  alleged  to  have  taken  wrongful 
possession  of  the  lumber  resided  in  this  State,  the  administratrix  of 
decedent  could  sue  such  persons  here.(^) 

The  personal  assets  of  an  estate  become  legally  vested  in  the  ad- 
ministrator, and  the  heirs  cannot  maintain  an  action  at  law,  in 

(?/)  21  111.  46.  (b)  Miller  v.  Jones,  39  111.  54. 

(z)Wittenborg  v.  Murphy,  36  111.  344.        (c)  Dixon  v.  Nicwlls,  39  111.  372. 
(a)  Johnston  v.  Maples,  49  111.  101.  (d)  Wells  v.  Miller,  45  111.  382. 


94  INTESTATE   ESTATES.  [CH.  IIL 

Powers  and  duties  of  administrators. 

their  own  right,  for  any  portion  of  such  personal  estate,  until  an 
order  of  court  for  distribution  has  been  obtained.(e) 

PERSONAL  ESTATE.  Money  due  a  testator  at  his  decease,  upon 
contracts  for  the  sale  of  real  estate,  made  by  him  during  his  life, 
no  deed  having  been  executed,  are  to  be  considered  a  part  of  his 
personal  estate,  the  same  as  other  debts  due  the  estate,  and  the  fact 
that  some  of  the  contracts  were  liable  to  forfeiture  at  the  death  of 
the  testator  can  make  no  difference,  since  the  testator  did  not 
assert  such  right.  (/) 

LIABILITY  OF  SURETIES.  Money  paid  to  an  administrator  by  a 
railroad  company,  upon  whose  road  the  intestate  was  killed,  being 
paid  as  compensation  therefor,  is  not  assets  in  the  hands  of  the  ad- 
ministrator which  he  is  bound  to  administer;  and  the  sureties  on  the 
administrator's  bond  are  responsible  for  its  proper  distribution.  (//) 

An  administrator  cannot  affect  the  title  of  the  heirs  to  real  estate, 
descended  to  them  from  the  intestate,  except  by  a  sale  authorized  by 
an  order  of  court.  He  has  no  power  to  admit  away  the  title  to  real 
estate  which  is  held  by  heirs  under  the  law  of  descent.(^) 

As  to  limitation  of  the  administrator's  power  over  the  real  estate 
of  decedent. (i) 

The  administrator  has  no  power,  nor  is  he  bound  to  protect  the 
realty  in  any  manner,  not  even  to  the  extent  of  paying  the  taxes.  (t/) 

CHANCERY  JURISDICTION.  The  thirty-fourth  section  of  the  con- 
veyance act,  which  authorizes  the  executors,  administrators  or  heirs 
of  any  deceased  person,  who  shall  have  made  a  contract  in  writing, 
in  his  life-time,  for  the  conveyance  of  land,  to  apply  to  a  court  of 
chancery  for  a  decree  that  the  conveyance  be  made,  embraces  only 
those  cases  where  the  purchase-money  has  been  fully  paid,  and  has 
no  reference  to  a  case  where  the  consideration  remains  wholly  or  in 
part  unpaid ;  yet  a  court  of  chancery  will  entertain  a  bill  at  the  suit 
of  the  executors  or  administrators,  and  heirs  or  devisees  of  such 
vendor,  where  the  consideration  has  not  been  paid,  for  the  twofold 
purpose  of  enforcing  the  payment  of  the  money  and  authorizing  a 
conveyance  of  the  land.(&) 

MISTAKE.    An  administrator  has  no  authority  to  apply  to  a  court 

(e)  Neubrecht  v.  Santmeyer,  50  111.        (i)  Phelps  v.  Fankhouser,  39  111.  401  ; 

74.  Gridley  v.    Watson,  53  id.  186;   Shoe- 

(/)  Skinner  v.  Newberry,  51  111.  203.  mate  v.  Lockridqe,  id.  503. 
(J7)  Goltra  v.  The  People,  53  111.  224.        (j)  Phelps  v.  Funkhouser,  39  111.  401 
(K)  Walbridge  v.  Day,  31  111.  379.  (K)  Burger  v.  Potter,  32  111.  66. 


CH.  III.]  INTESTATE   ESTATES.  95 

Powers  and  duties  of  administrators. 

of  chancery  to  reform  a  deed,  made  to  his  intestate  in  his  life-time, 
on  the  allegation  that  there  was  a  mistake  therein  in  the  description 
of  the  land  intended  to  be  conveyed.(Z) 

VOLUNTARY  DEED;  FRAUD.  An  administrator  cannot  avoid  a 
voluntary  deed  of  his  intestate,  nor  can  he  take  advantage  of  a 
fraudulent  conveyance  made  by  his  intestate.(ra) 

An  administrator  cannot,  in  equity,  obtain  relief  by  the  removal 
of  adverse  apparent  titles  to  the  lands  of  his  intestate,  or  convert 
an  equitable  into  a  legal  title.(%) 

Where  an  administrator  accepted  from  a  debtor  of  the  estate  a 
mortgage  upon  land  of  which  the  intestate  died  seized  in  fee  simple, 
and  the  title  to  which  had  fully  vested  in  the  heirs  by  descent,  and 
a  foreclosure  and  sale  of  the  premises  was  had  under  such  mortgage : 
Held,  that  these  proceedings  on  the  part  of  the  administrator,  while 
they  were  an  admission  by  him  that  the  mortgagor  had  some  title  in 
the  premises,  in  nowise  affected  the  title  of  the  heirs,  which  they 
took  by  inheritance.  Nor  would  such  proceedings  on  the  part  of 
the  administrator  operate  to  estop  a  subsequent  administrator  of 
the  same  estate  from  purchasing  the  title  of  the  heirs  to  these  prem- 
ises, and  holding  it,  at  least  against  the  right  of  purchasers  derived 
under  such  mortgage. (o) 

By  the  statute  of  1825,  an  executor  or  administrator  was  author- 
ized to  relinquish  a  part,  and  obtain  a  patent  for  the  residue,  of  any 
tract  of  land  which  might  have  been  purchased  by  the  testator  or 
intestate,  and  for  which  full  payment  might  not  have  been  made, 
whenever  that  could  be  done  under  the  acts  of  congress ;  and  the 
executor  or  administrator  was  likewise  authorized  to  sell  and  assign 
a  certificate  of  purchase  of  land  partly  paid  for,  when  such  sale 
might  be  necessary  in  order  to  pay  the  debts  of  the  deceased. (p) 

A,  being  at  the  point  of  death,  made  his  will,  directing,  among 
other  things,  how  his  real  estate  should  be  disposed  of,  but  omitted 
to  name  an  executor.  B  was  duly  appointed  administrator  with  the 
will  annexed,  who,  supposing  that  he  had  authority,  sold  the  land 
and  executed  a  deed  with  intent  to  convey  the  fee.  In  an  action 
of  ejectment  against  the  grantee,  brought  by  the  heirs  of  the  testa- 
tor, this  deed  was  offered  in  evidence  and  excluded  by  the  coiu't 

(1)  Shoemate  v.  Lockridge,  53  111.  503.  Gridley  v.   Watson,  53  id.  186 ;    Shoe- 

(m)  Ghoteau  v.   Jones,   11   111.   300 ;  mate  v.  Lockridge,  id.  503. 

Alexander  v.  Tarns,  13  id.  221.  (o)  Walbridge  v.  Day,  31  111.  370. 

\ji)  Smith  v.  McConnell,  17  111.  135  ;  (p)  Prevo  v.  Walters,  4  Scam.  35. 


UO  INTESTATE   ESTATES.  [CH.  III. 

Resignation  and  removal 

Held,  that,  as  the  administrator  had  not  the  power  to  sell  and  con- 
vey by  virtue  of  the  will,  either  at  common  law  or  hy  the  provisions 
of  our  statute  of  wills,  the  deed  was  properly  excluded.^) 

PURCHASING  AT  THEIR  OWN  SALE.  As  to  effect  in  law,  also  in 
equity,  (r) 

As  to  acquiescence  of  the  heirs  in  such  a  purchase  by  the  admin- 
istrator, and  delay  in  setting  the  sale  aside. (s) 

A  court  of  chancery  will  not  compel  an  heir  to  pay  over  money 
to  an  administrator  when  such  administrator  has  no  debts  to  pay, 
nor  any  use  to  make  of  it  connected  with  the  estate. (t) 


SECTION  IV.      RESIGNATION  AND  REMOVAL  OF  EXECUTORS  AND  AD- 
MINISTRATORS. 

1.  The  statute  of  1872. 

2.  Petition. 

3.  Order. 

4.  Notice. 

5.  Resignation. 

6.  Record. 

7.  Notice  to  security. 

8.  Assent. 

9.  Removal  and  revocation,  grounds  of. 
10.  Petition. 

1.  THE  STATUTE  OF  1872.  The  repealed  statute  required  a  notice 
to  be  published  before  presenting  and  asking  for  the  acceptance  of 
a  resignation  by  an  executor  or  administrator.  The  act  of  1872  (u) 
provides  "  that  the  executor  or  administrator  may,  upon  his  peti- 
tion, and  upon  giving  such  notice  to  the  legatees,  devisees  or  dis- 
tributees as  the  court  shall  direct,  be  allowed  to  resign  his  trust 
when  it  appears  to  the  county  court  to  be  proper." 

2.  PETITION. 

In  the  matter  of  the  estate  of)  County  court  of  county, 

A  B,  deceased.  y  term,  A.  D.  18    . 

To  the  Hon.  ,  Judge  of  said  court : 

Your   petitioner  respectfully  shows  that  he  is  about  to  remove  from  the 

(q)  Hall  v.  Irwin,  2  Gilm.  176.  (*)  Miles  v.  Wheeler,  43  111.  123. 

(r)  Lockwood   v.  Mills,  39  111.  603 ;  (t)  Lewis  v.  Lyons,  13  111.  117. 

Miles  v.  Wheeler,  43  id.  123;  Kruse  v.  (u)  %  40,  R.  S.  1874,  p.  111. 
Steffens,  47  id.  112. 


CH.  III.]  INTESTATE   ESTATES.  97 


Of  executors  and  administrators. 


State,  and  is  going  to  reside  at  San  Francisco,  in  the  State  of  California.  He, 
therefore,  asks  leave  to  resign  his  trust  as  administrator  (or  executor)  of  the 
said  estate  (or  of  the  last  will  and  testament  of  said  A  B).  C  D. 

Upon  filing  this  petition,  notice  should  be  given  as  required  by 
the  court,  in  an  order  to  be  entered.  If  the  legatees,  devisees  and 
distributees  cannot  be  personally  served,  notice  should  be  published 
as  required  in  chancery.(v) 

3.  ORDER.  On  reading  and  filing  the  petition  of  C  D,  adminis- 
trator (or  executor,  etc.),  showing  that  he  is  about  to  remove  from 
this  State,  and  asking  leave  to  resign,  ordered,  that  notice  of  his 
application  be  given  to  all  the  distributees  (or  legatees  and  devi- 
sees) of  said  estate  (here  specify  if  the  notice  is  to  be  published  — 
how),  and  that  said  application  be  heard  (here  state  when  the  hear- 
ing is  to  be). 

4.  NOTICE  OF  RESIGNATION. 

STATE  OF  ILLINOIS,  ) 

County,     f  * 

To  the  term  of  county  court  of          county,  A.  D.  18     : 

"  estate 


To  all  persons  concerned  : 

Take  notice,  that  the  undersigned,  administrator  of  A  B,  deceased,  will,  at 
the  term  of  said  court,  holden  at  the  court-house  in  the  of  , 

in  said  county,  on  the  first  Monday  of  ,  18    ,  present  to  said  court,  for 

acceptance,  his  resignation  of  the  office  of  administrator  of  A  B,  deceased,  and 
you  are  hereby  notified  and  summoned  to  be  and  appear  before  said  court  on 
the  day  of  ,  A.  D.  18  ,  to  show  cause,  if  any  you  have,  why  said  res- 

ignation should  not  be  accepted,  according  to  the  statute  in  such  case  made 
and  provided.  E  F, 

Clerk  of  said  court. 
Dated  ,  18    . 

A  copy  of  the  ADVERTISEMENT,  with  the  publisher's  certificate  of 
the  due  publication  thereof,(w)  should  be  attached  to,  or  presented 
to  the  court  with,  the  resignation.  Before  the  acceptance  of  the 
resignation,  the  administrator  (or  executor)  must  render  a  complete 
settlement  of  all  matters  in  his  hands  up  to  the  time  of  his  resig- 
nation, and  deliver  into  court  all  evidences  of  property,  moneys, 
etc.,  in  his  possession.  The  resignation  must  be  in  writing,  and 
may  be  in  the  following  form  :(x) 

(v)  See  pp.  126-131,  infra.  (x)  %%  4f   41,  R.  S.  1874,  p.  111. 

(w)  See  p.  51,  supra. 

13 


98  INTESTATE   ESTATES.  [CH.  III. 

Resignation  and  removal 

5.  KESIGNATION. 

STATE  OF  ILLINOIS,  )  County  court  of          county. 

County,     j"  term,  A.  D.  18    . 

In  the  matter  of  the  estate ) 
of  A  B,  deceased.  J 

To  ,  Judge  of  said  court : 

The  undersigned,  administrator  of  A  B,  deceased,  having  given  the  notice 
thereof  required  by  order  of  court,  as  will  appear  by  proof  of  the  same  here- 
with filed,  does  hereby  resign  his  office  as  administrator  of  the  goods,  chattels, 
rights,  credits  and  effects  of  said  A  B,  deceased,  and  prays  that  this,  his  resig- 
nation, be  accepted,  and  that  he  be  discharged  from  the  further  exercise  of  his 
said  office.  C  D, 

Administrator  of  A  B,  deceased. 

April  2, 18    . 

6.  THE  ACCEPTANCE  OF  THE  BESIGNATION  may  be  entered  in  the 
following  form : 

6Stat1  *»*»*»  of  administrator. 
On  this  day  came  C  D,  administrator  of  A  B,  deceased,  and  presents  to  the 
court,  for  its  acceptance,  his  resignation  of  the  office  of  administrator  of  the 
goods,  chattels,  effects,  rights  and  credits  of  the  said  A  B,  deceased ;  and,  it 
appearing  to  the  court  that  due  notice  of  the  presentation  of  said  resignation 
has  been  given,  and  the  said  administrator  having  stated  and  adjusted  with 
said  court  an  account  of  his  actions  and  doings  as  such  administrator,  and  paid 
over  all  moneys,  effects  and  choses  in  action,  according  to  law,  and  the  court 
being  sufficiently  advised  in  the  premises,  it  is  ordered  and  adjudged  that  the 
resignation  of  the  said  C  D,  as  administrator  of  A  B,  deceased,  be  accepted, 
and  the  said  C  D  be  discharged  from  further  exercise  of  his  said  office. 

7.  NOTICE  TO  SECUEITY. 

STATE  OF  ILLINOIS,  ) 

County,     f  * 

County  court  of          county,  to  term,  18    . 

In  the  matter  of  the  estate )          XT  , . 
of  A  B,  deceased.  Notlce  of  resignation. 

To  E  F,  security  on  the  bond  of  0  D,  administrator  of  A  B  ,  deceased  : 

Take  notice,  that  the  undersigned,  administrator  of  A  B,  deceased,  will,  at 
the  term  of  said  court,  to  be  holden  at  the  court-house  in  the  of 

,  on  the        Monday  of  ,  18    ,  tender  to  said  court,  for  its  accept- 

ance, his  resignation  of  the  office  of  administrator  of  said  A  B,  deceased. 

CD, 
Dated  ,  18    .  Administrator  of  A  B,  deceased. 

Copies  of  these  notices  should  likewise  be  presented,  and  proof 
of  service  made,  as  above. 


CH.  III.J  INTESTATE   ESTATES.  99 

Of  executors  and  administrators. 

8.  Where  one  of  several  administrators  desires  to  resign,  lie  may 
do  so  upon  complying  with  the  directions  of  the  court,  and  filing 

the  ASSENT  OF  HIS  CO-ADMINISTKATOE. 

8.    FOEM  OF  ASSENT  TO  EESIGNATION. 

STATE  OF  ILLINOIS,  ) 

County.     <j88- 
In  the  matter  of  the  estate ) 
of  A  B,  deceased.  ) 

To  J  H,  Judge  of  the  county  court  of  county : 

We,  J  K,  co-administrator,  and  Y  Z,  security  of  C  D,  administrator  of  A  B, 
deceased,  do  hereby  assent  to  the  resignation  of  C  D  as  such  administrator. 

Witness  our  hands  and  seals  this        day  of  ,  A.  D  18     . 

[SEAL.]  J  K, 

[SEAL.]  Y  Z. 

9.  KEMOVAL  OF  ADMINISTEATOES  FEOM  OFFICE.    The  letters  of 
administration  being  a  grant  of  power,  which  alone  invests  this 
officer  with  the  right  to  act  as  administrator,  if  they  be  revoked  or 
repealed,  his  right  to  aot  in  such  capacity  is  ended;  and,  conse- 
quently, all  acts  done  by  him  subsequently  thereto  are  void,  as 
against  the  interests  of  others.    If  the  administration  be  not  abso- 
lutely void,  but  only  voidable,  before  the  repeal  of  his  letters,,  his 
acts  regularly  done  under  color  of  his  office  are  valid,  and  the  re- 
peal does  not,  in  such  case,  act  retrospectively  to  affect  them. 

Letters  of  administration  may  be  revoked  and  repealed  for  vari- 
ous causes,  among  which  may  be  named  the  following:  The  produc- 
tion and  probate  of  a  will;  the  non-residence  or  removal  from  the 
State  of  the  administrator;  removing  intestate's  property  out  of  the 
State,  and  his  -refusal  or  neglect  to  render  his  account  and  make 
settlement;  or  where  the  person  to  whom  letters  have  been  issued 
shall  become  insane,  lunatic  or  of  unsound  mind,  or  an  habitual 
drunkard,  or  be  convicted  of  an  infamous  crime,  or  shall  waste  or 
mismanage  the  estate,  or  conduct  himself  in  such  manner  as  to 
endanger  his  co-administrator  or  securities,  or  has  procured  letters 
upon  the  false  and  fraudulent  pretense  of  being  a  creditor  of  the 
estate,  or  upon  any  false  pretense  whatever,  etc. 

In  the  revocation  and  repeal  of  letters  of  administration,  the 
court  generally  acts  upon  the  application  of  some  interested  party. 

10.  PETITION  FOE  EEVOCATION  OF  LETTEES  OF  ADMINISTEATION. 

STATE  OP  ILLINOIS,  )       . 
Cook  County.        f      '        County  court  of  county,  term,  18    . 

1o  Hon.  ,  Judy e  of  said  court  : 

The  petition  of   John  Doe,  of  said  county,  respectfully  represents  to  your 


100  INTESTATE   ESTATES.  [CH.  III. 

Resignation  and  removal 

honor  that  your  petitioner  is  an  heir  at  law  (or,  as  the  case  may  be),  of  Richard 
Roe,  late  of  said  county,  deceased,  and,  as  such,  is  interested  in  the  safe  and 
proper  administration  of  said  deceased's  estate,  and  entitled  to  distribution 
therein ;  "  that  the  security  of  A  B,  administrator  of  said  Richard  Roe,  has 
become  insufficient ;  that  E  F,  his  security,  has  not  property  of  sufficient  value 
to  secure  the  distributees  and  creditors  of  the  estate  against  loss  and  damage 
which  may  occur  in  the  administration  of  the  said  estate."  (In  other  cases, 
omit  all  between  the  quotation  points,  and  insert  the  particular  facts  of  the  case 
upon  which  revocation  is  sought.)  Wherefore,  your  petitioner  prays,  that  the 
said  A  B  be  required  by  this  court  to  give  other  and  sufficient  security,  and, 
in  default  thereof,  that  the  letters  of  administration  so  granted  to  him  be 
revoked  and  repealed,  and  administration  be  granted  to  some  other  person 
entitled  to  the  same. 

And  your  petitioners  will  ever  pray,  etc. 

Dated  ,  18    .  JOHN  DOE. 

The  petition  should  be  verified  by  the  oath  of  the  person  making 
it. 

Upon  filing  the  petition,  a  citation  will  issue  to  the  administra- 
tor to  show  cause  against  the  application.  Upon  the  return  of  the 
citation,  the  court,  upon  being  satisfied  of  the  insufficiency  of  the 
security,  will  require  the  administrator  to  give  a  new  bond  by  a 
specified  day,  and,  in  case  of  default  thereof,  will  order  his  removal. 

GROUND  OF  REMOVAL.  Where  an  administrator  shows  by  his 
report  that  he  has  given  an  unauthorized  preference  to  creditors  in 
the  payment  of  assets,  it  is  sufficient  to  justify  his  removal,  (z) 

REVOCATION.  The  acceptance  of  the  probate  court  of  the  resig- 
nation of  an  administrator  amounts  to  a  revocation  of  his  letters; 
and  if  there  are  other  administrators  the  burden  of  administration 
is  cast  on  them.(y) 

The  refusal  of  an  administrator  to  perform  the  duties  of  his  trust 
is  a  sufficient  cause  for  revoking  his  authority,  (y) 

REMOVAL  OF  ADMINISTRATOR  FROM  THE  STATE.  The  act  of  184? 
on  this  subject,  as  reprinted  in  1853,  and  as  it  appears  in  Scates' 
Compilation,  page  1238,  is  not  correctly  copied  from  the  original 
session  laws,  important  words  being  omitted,  (y]  But  the  same  is 
correctly  printed  in  Gross'  Statutes,  page  811;  also  in  Cothran's 
Statutes,  page  56.  A  non-resident  cannot  legally  be  appointed  ad- 
ministrator of  an  estate  in  this  State,  not  even  on  the  estate  of  a 
non-resident  dying  abroad  and  leaving  effects  in  this  State.(z) 

(a;)  Foltz  v.  Prouse,  17  111.  487.  (z)  Child  v.    Oratiot,    41    111.   357;  3 

(y)  Marsh  v.  The  People,  15  111.  284.      Cothran's  Stats.,  p.  50. 


CH.  III.]  INTESTATE   ESTATES.  101 


Of  executors  and  administrators. 


Where  a  non-resident  is  so  appointed,  it  is  the  duty  of  the  pro- 
bate court  to  revoke  the  appointment  on  proper  application.(z) 

THE  HEARING.  On  filing  the  petition  for  the  removal  of  an 
executor  or  administrator  for  cause,  as  we  have  seen,  process  issues. 
The  time  for  hearing  should  be  fixed  and  continued  from  time  to 
time  until  the  executor  or  administrator  is  either  actually  or  con- 
structively served.  No  course  of  procedure  is  indicated,  but  the 
Chancery  Practice  in  such  cases  affords  ample  precedents,  if  we  are 
to  consider  the  petition  in  the  nature  of  a  bill  in  chancery. 

The  decree  should  recite  the  facts  upon  which  the  same  is  made. 

DECREE  OF  REMOVAL  OF  AN  EXECUTOR  OR  ADMINISTRATOR. 

THE  PETITION  of  John  Doe  coming  on  this  day  to  be  hfeard,  and  it  appearing 
that  A  B,  the  aforesaid,  has  filed  his  answer  herein,  denying  the  facts 

stated  in  said  petition,  and  it  appearing  to  the  court  from  the  testimony  that  A 
B  has  mismanaged  said  estate  as  stated  in  said  petition,  and  that  all  the  facts 
stated  in  said  petition  are  true  and  have  been  fully  proved  to  the  satisfaction 
of  this  court,  and  after  argument  by  the  respective  counsel  for  said  petitioner 
and  said  ,  it  is  now  here  ORDERED,  ADJUDGED  AND  DECREED,  that  said 

accounts  be  forthwith  closed ;  that  all  the  estate  of  the  said 
which  has  come  to  the  hands  of  the  said  A  B,  as  such  ,  now  remaining  uu- 

disposed  of,  be  delivered  over  to  another  ,  to  be  by  this  court  appointed, 

ai  \  that  the  letters  heretofore  issued  to  the  said  A  B  be,  and  hereby  are, 

revoked ;  and  that  the  said  A  B  attend  before  this  court  from  day  to  day  until 
this  decree  and  the  several  orders  herein  are  fully  complied  with,  and  until 
the  further  order  of  court. 

Dated  ,  A.  D.  18    . 

Another  executor  or  administrator  is  then  to  be  appointed  as 
before,  and  the  estate  unadministered,  turned  over  to  him. 

In  case  of  a  will,  the  appointee  of  the  court  is  sometimes  termed 
"  an  administrator  cum  testamento  annexo  de  bonis  non  "  (with  the 
will  annexed  of  the  unadministered  estate) ;  in  case  of  an  intestate, 
"administrator  de  bonis  non"  (of  the  unadministered  estate). 

(«)  Child  v.  Gratiot,  41  111.  357. 


102  ESTATES   OF   MINORS.  [CH.  IV. 


Infants  or  minors. 


CHAPTER  IV. 

PERSONS  AND  ESTATES  OF  INFANTS  OR  MINORS. 

SECTION     I.  Infants  or  minors. 

II.  Competency  and  appointment  of  guardians. 

III.  Their  powers  and  duties. 

IV.  Resignation  and  removal  of  guardians. 


SECTION  I.  —  INFANTS  OR  MINORS. 

1.  Females  under  eighteen  years  of  age  and  males  under  the  age  of  twenty- 

one,  in  this  State,  are  minors. 

2.  Validity  or  invalidity  of  their  acts  generally. 

3.  Ratification  of  a  sale  of  land,  right  to  hold  property,  etc. 
4   Estoppel  and  laches,  not  applicable  to  infants,  generally. 

5.  Of  their  property. 

6.  Actions  by  and  against. 

1.  MALES  AT  TWENTY-ONE,  FEMALES  AT  EIGHTEEN,  ARE  OF  LAW- 
FUL AGE.    Males  of  the  age  of  twenty-one,  and  females  of  the  age 
of  eighteen  years,  are  considered  of  full  age  for  all  purposes;  and 
until  these  ages  are  attained  they  are  considered  minors. (a) 

2.  VALIDITY  OR  INVALIDITY  OF  THEIR  ACTS.    An  infant  cannot 
bind  himself  by  bond,(Z>)  but  the  implied  contracts  of  an  infant  for 
necessaries  are  binding  upon  him;  (c)  the  appointment  of  an  at- 
torney by  an  infant  is  absolutely  void.(c) 

A  minor  contracted  to  work  nine  months,  but  worked  six  weeks 
and  quit;  held,  that  he  was  not  bound  by  the  contract,  and  that  he 
could  recover  the  value  of  the  services  rendered.(^) 

Contracts  by  infants  for  the  improvement  of  their  property  are 
not  binding  upon  them.  Nor  does  the  receipt  of  rents  from  the 
improved  property,  after  they  attain  majority,  amount  to  H  ratifica- 
tion, (e) 

Where  a  plaintiff  relies  on  a  new  promise,  made  after  the  defend- 
ant became  of  age,  the  original  contract  having  been  made  during 
infancy,  he  should  declare  on  the  new  contract.(/) 

(a)  §  1,  R.   S.  1874,  p.  558  ;   Steven-        (c)  Cole  v.  Pennoyer,  14  111.  158. 
sou  v.  Westfall,  18  111.  209 ;  Harrer  v.        (d)  Ray  v.  Raines,  52  111.  485. 
WaUner,  80  111.  197 ;  Cothran's  Stats.,        (e)  McCarty  v.  Carter,  49  111.  53. 

p.  766.  (/)  Bliss  v.  Ferryman,  1  Scam.  484. 

(b)  Bliss  v.  Ferryman,  1  Scam.  484. 


CH.  IV.]  ESTATES   OF   MINORS.  103 


Infants  or  minors. 


FRAUDS  AND  TORTS.  For  a  discussion  of  the  liability  of  infants 
for  frauds  and  torts,  see  Davidson  v.  Young,  (g) 

An  infant  is  not  to  be  charged  with  laches  for  failing  to  bring  an 
advancement  into  hotchpot.  (A) 

Conveyances  made  by  an  infant  in  person  are  voidable  only,  to  be 
confirmed  or  repudiated  at  his  discretion  after  he  arrives  at  ma- 
jority^ h)  So,  if  a  minor  contracts  to  sell  real  estate,  the  contract 
cannot  be  enforced  if  he  refuse  after  his  majority  to  sanction  it  ;(&') 
and,  generally,  a  minor  may  revoke  a  conveyance  within  a  reason- 
able time  after  he  becomes  of  age.  In  this  State,  under  the  seven 
years'  limitation  act,  if  a  conveyance  by  a  minor  is  to  be  revoked  by 
him,  he  must  commence  proceedings  within  three  years  after  the 
disability  is  removed ;(/)  and  a  conveyance  by  a  minor  of  real  estate 
must  be  disaffirmed  and  repudiated  within  three  years  after  his 
majority,  or  it  will  be  upheld. (&) 

3.  KATIFICATION.    As  to  what  is  necessary  to  constitute  a  ratifi- 
cation of  a  sale  of  lands.(Z) 

If  an  infant  conveys  his  land,  and  on  attaining  his  majority  rati- 
fies the  conveyance,  and  then  conveys  to  another  person  for  a  valu- 
able consideration,  the  last  grantee,  having  notice  of  the  deed  made 
in  infancy,  but  no  notice  of  the  ratification,  will  hold  the  land.(w) 

One  has  as  perfect  a  legal  right  to  purchase  land  which  his 
grantor  has  conveyed  during  infancy,  as  to  purchase  land  that  has 
never  been  conveyed  at  all,  and  he  is  not  to  be  denied  the  position 
of  an  innocent  purchaser  because  he  has  notice  of  the  deed  made 
in  infancy.(rc) 

4.  ESTOPPEL  AND  LACHES.    Infants  are  not  estopped  by  failure  to 
give  notice  or  by  acquiescence.(o) 

5.  THE  PROPERTY  OF  INFANTS.   SALE,  ETC.,  OF  REAL  PROPERTY. 

A  obtained  money  from  B  to  purchase  certain  land.  The  land  was 
purchased  in  the  name  of  C,  to  secure  B  for  the  money  loaned.  A 
died  before  the  time  for  payment  of  the  money  to  B,  leaving  an 
infant  son.  Held,  that  the  infant  had  an  equitable  estate  in  the 

(g)  38  111.  145.  (ri)  Id. ;  and  Cadwett  v.  Sherman,  45 

(h)  Barnes  v.  Hazelton,  50  111.  429.  111.  348.     See  the  case  of  Parmelee  v. 

(f)  Walker  v.  Ellis,  12  111.  470.  Smith,  21  111.  620,  as  to  the  right  of  a 

(f)  Cole  v.  Pennoyer,  14  111.  159.    See  minor  to  hold  property  as  his  own. 

1  Hill's  C.  L.,  Limitations.  (0)  Kane  County  v.   Herrinrjton,  50 

(k)  Blakenship  v.  Stout,  25  111.  132.  111.  282  ;   Williams  v.  Wiggand,  53  id. 

(0  Davidson  v.  Yovnq,  38  111.  145.  233  :  C.,R.  1.  &  P.  B.  R.  Co.  v.  Ken- 

(m)  Black  v.  Hills,  36  111.  373.  nedy,  70  id.  350. 


104  ESTATES   OF   MINORS.  [CH.  IV. 


Infants  or  minors. 


land,  and  that  a  bill  was  properly  filed  to  redeem  the  land;  and  that, 
as  the  infant  averred  that  he  had  no  means  of  redeeming  but 
through  this  property,  an  account  should  be  taken  to  determine  the 
amount  of  the  incumbrances,  and  that  the  money  be  raised  by  a  sale 
or  mortgage  of  the  premises,  or  in  such  other  appropriate  way  as 
might  be  most  for  the  interest  of  the  infant,  and  applied  to  the  ex- 
tinguishment of  the  incumbrances.(^) 

Where  it  appeared  that  notice  of  an  application  for  the  sale  of 
land,  as  recited  in  a  decree  pronounced  thirty  years  since,  was 
served  upon  infants  instead  of  their  guardians,  as  the  statute 
required,  no  guardians  ad  litem  having  been  appointed :  Held,  that 
the  circuit  court  had  not  jurisdiction.^) 

As  to  how  far  infants  are  bound  by  sales  of  their  real  estate  by 
executors,  administrators  and  guardians,  see  Gibson  v.  Roll.(r} 

ESTOPPEL.  For  the  facts  necessary  to  estop  a  party  from  assert- 
ing claim  to  lands  sold  by  the  administrator  without  due  authority, 
during  the  minority  of  such  party.(s) 

6.  ACTIONS  BY  AND  AGAINST.  Neither  a  default  nor  a  decree 
pro  confesso  can  be  entered  against  an  infant.  "Where  infants  are 
defendants  in  chancery  proceedings,  the  proper  and  convenient  prac- 
tice is  for  the  court  to  refer  the  matter  which  requires  to  be  proved 
to  the  master  in  chancery,  that  he  may  take  the  evidence  and  report 
the  facts  to  the  court  for  its  final  determination.(tf) 

Laches  are  not  imputable  to  an  infant.(w) 

Where  the  complainant  chooses  to  proceed  against  infants,  under 
the  statute,  without  service  of  process,  it  is  the  duty  of  the  court 
to  exact  of  the  guardian  a  vigorous  defense  of  their  interests;  and 
it  is  wrong  to  take  a  bill  for  confessed  against  them  under  any  cir- 
cumstances, (v) 

Nothing  can  be  admitted,  but  every  thing  must  be  proved,  against 
an  infant,  (w) 

The  right  of  action  for  services  rendered  by  a  minor  is  in  the 
parent  or  guardian,  (x) 

(p)  Smith  v.  Sackett,  5  Gilin.  534.  (u)  Smith  v.  Sackett,  5  Gilm.  534. 

(q)  Whitney  v.  Porter,  23  111.  445.  (v)  Sconce  v.  Whitney,  12  111.  150. 

(r)  27  111.  90  ;  Williams  v.  Wiggand,  (w)  Hitt   v.   Ormsbee,    12    111.    166 ; 

53  id.  233.  Hamilton  v.  Oilman,  id.  260 ;  Tuttle  v. 

(s)  Davidson  v.  Young,  38  111.  145.  Garrett,  16  id.  354 ;  Reddick  v.  Pres. 

(t)  McClay,  Adm'r,  v.  Norris,  4  Gilm.  State  Bank,  27  id.  148. 

370 ;  Enos  v.  Capps,  12  111.  255  ;  Cost  v.  (x)  Dufield  v.  Cross,  12  111.  397. 
Rose,  17  id.  276;   Chaffin  v.  Heirs  of 
Kimball,  23  id.  36. 


CH.  TV.]  ESTATES   OF   MINOKS.  105 

Infants  or  minors. 

An  infant  is  not 'always  bound  to  appear  in  a  court  of  chancery 
by  guardian,  although  one  may  be  in  existence.  The  bill  may  be 
filed  by  the  next  friend,  and  it  rests  in  the  sound  discretion  of  the 
court  whether  the  suit  shall  so  proceed  or  in  the  name  of  the  guard- 
ian, (y) 

A  party  having  a  right  of  action  against  the  ancestor  is  not  to  be 
delayed  in  his  remedy,  whether  legal  or  equitable,  because  of  the 
non-age  of  those  on  whom  the  law  casts  the  liability,  (z) 

In  all  cases  against  infants,  strict  proof  is  required.  The  record 
must  furnish  proof  to  sustain  a  decree  against  them,  whether  the 
guardian  ad  litem  answer  or  not.  (a] 

Where  a  special  agreement  has  been  made  by  a  parent  to  pay  the 
board  of  a  child,  the  creditor  cannot  collect  the  board  from  the 
infant's  estate,  if  the  parent  neglect  to  pay.  (b) 

A  guardian  ad  litem  must  be  appointed  for  infant  defendants,  or 
all  proceedings  against  them  will  be  erroneous,  (c) 

A  judgment  or  decree  against  a  minor  without  a  guardian,  or  an 
appearance  by  attorney,  is  not  void,  but  merely  voidable,  (d) 

Such  a  judgment  may  be  set  aside  in  the  court  where  it  is  ren- 
dered on  motion;  and,  where  the  judgment  has  been  set  aside,  the 
defendant  may  make  any  defense  to  which  he  may  be  entitled,  (d) 

It  is  error  to  permit  a  guardian  ad  litem  to  withdraw  a  plea  and 
allow  a  judgment  by  default  to  be  entered  against  the  infant,  (e) 

If  heirs  be  brought  into  court  by  scire  facias,  under  the  statute, 
to  show  cause  why  they  should  not  be  made  parties  to  a  judgment, 
it  will  be  necessary  to  prove  up  the  case  de  novo  against  them.  But 
adults  cannot  demand  that  more  shall  be  proved  against  them  when 
there  are  infant  parties  than  if  all  were  adults.  (/) 

A  party  who  is  under  eighteen  years  of  age  at  the  time  of  com- 
mitting a  larceny  should  be  punished  by  imprisonment  in  the 
county  jail,  even  though  he  is  over  eighteen  when  convicted,  (g] 

It  is  not  every  suit  which  has  for  its  object  to  divest  a  minor  of 
his  estate  that  is  against  his  interest  so  that  he  must  be  made  a 

(y)  Holmes  v.  Field,  12  111.  422.  (c)  McDaniel  v.  Corrett,  19  111.  226. 

(z)  Enos  v.  Capps,  lo  111.  277.  (d)  Peak  v.  SJiasted,  21  111.  137. 

(a)  Masterson  v.  Wiswould,  18  111.  48  ;  (e)  Peak  v.  Pricer,  21  111.  164. 
Carr  v.  Fidden,  id.  77 ;  Cost  v.  Rose,  17  (/)  Cox  v.  Reed,  27  111.  434. 

id.  276  ;  Chaffin  v.  Heirs  of  Kimball,        (g)  Monoughan  v.  The  People,  24  111. 
23  id.  36  ;  Tibbs  v.  Allen,  27  id.  119.          340. 

(b)  Sinklear  v.  Emert,  18  111.  64. 

14 


106  ESTATES   OF   MIXORS.  [CH.  IV. 


Infants  or  minors. 


defendant,  but  only  in  those  special  cases  arising  under  the  stat- 
ute, (h) 

Where  minors  are  defendants  to  a  bill,  a  decree  can  only  be  ren- 
dered against  them  on  full  proof.  Nor  can  their  natural  or  legal 
guardians,  by  consent,  waive  this  requirement,  (i) 

Where  a  decree  has  been  rendered  against  a  minor  defendant,  he 
is  entitled  to  his  day  in  court,  whether  the  right  is  expressly 
reserved  in  the  decree  or  not,  and  he  may,  even  during  his  minority, 
by  his  next  friend  or  guardian,  file  an  original  bill  to  impeach  the 
decree  either  for  fraud  or  for  error  appearing  on  its  face.  (/) 

Delay  after  majority  for  the  period  which  bars  a  writ  of  error 
would  bar  such  bill,  (k) 

They  cannot  be  brought  into  court  by' stipulation  of  attorneys.  (I) 
Nor  by  entry  of  appearance  by  guardian,  (m) 

Where  there  are  adult  and  infant  defendants,  and  the  writ  of 
error  is  in  fact  prosecuted  by  the  adults  alone,  they  cannot  assign 
for  error  those  proceedings  which  only  affect  the  interests  of  the 
infants,  (n) 

Decree  against  infants,  without  a  guardian  or  an  appearance,  will 
be  set  aside,  (o) 

Defaults  and  decrees  pro  confesso  cannot  be  entered  against 
infants.(j9) 

The  decree  against  infants  must  show  that  the  material  allega- 
tions of  the  bill  were  proved.(g') 

A  decree  may  be  absolute  in  form  in  the  first  instance.  The 
statute  protects  the  minor  by  giving  him  five  years  after  his  majority 
to  bring  his  writ  of  error.(r) 

A  day  in  court  need  not  be  given  infants  specifically  in  the  de- 
cree, (s) 

An  infant  defendant  in  chancery  cannot  consent,  nor  can  his 
guardian  ad  litem  for  him,  to  the  taking  of  testimony  before  a  per- 
son not  properly  authorized  to  take  it.  A  guardian  ad  litem  cannot 

(h)  Burger  v.  Potter,  32  111.  66.  ([)  McDermaid  v.  Resell,  41  111.  490. 

vt)  Waugh  v.  Bobbins,  33  111.  182 ;  (m)  Greenman  v.  Harvey,  53  111.  386, 

Rhoads  v.  Rhoads,  43  id.  239 ;  Quigley  (n)  Rhonda  v.  Rhoads,  48  111.  239. 

v.  Roberts,  44  id.  503  ;  Barnes  v.  Hazle-  (o)  Hall  v.  Dams,  44  111.  494. 

ton,  50  id.  429.  (p)  Quigley  v.  Roberts,  44  111.  503. 

(j)  Kucheribeiser  v.  Beckert,  41   111.  (g)  Preston  v.  Hodgen,  50  111.  56. 

172  ;  Hess  v.  Voss,  52  id.  472.  (r)  Barnes  v.  Hazleton,  50  111.  429. 

(k)  Kuchenbeiser  v.  Beckert,  41  111.  (*)  Hess  v.  Voss,  52  111.  472. 
172. 


CH.  IV.]  ESTATES   OF   MINOKS.  107 

Competency  and  appointment  of  guardians. 

admit  away  any  of  the  rights  of  an  infant,  or  bind  him  by  consent 
to  an  action  which  may  be  prejudicial  to  the  infant,  (t) 

In  order  that  a  decree  shall  affect  infants,  they  must  be  made 
parties  to  the  bill,  either  complainants  or  defendants;  and,  if  the 
latter,  they  must  be  served  with  process,  (u) 

INFANCY  is  not,  at  common  law,  a  dilatory  plea.(v) 


SECTION  II. —  COMPETENCY  AND  APPOINTMENT  OF  GUAKDIANS. 

1.  Guardians,  jurisdiction  of  the  county  courts  to  appoint. 

2.  Construction  of  the  statute. 

3.  The  court  of  chancery  in  cases  of  divorce,  etc. 

4.  When  a  minor  may  nominate,  and  when  and  how  guardians  may  be  ap- 

pointed by  the  county  courts. 

5.  The  application  for  appointment. 

6.  Petition  to  be  appointed. 

7.  Citation  to  minors. 

8.  Petition  of  minors  to  be  appointed. 

9.  The  bond. 

10.  Suits  on  bonds. 

11.  Appointment  of  a  guardian  of  a  minor's  estate  when  the  father  is  living ; 

petition. 

12.  Other  cases. 

13.  Letters  of  guardianship. 

14.  Guardian  ad  litem  for  a  minor  in  a  justice  court. 

15.  Guardian  ad  litem  in  a  common-law  cause,  in  the  county  or  tircuit  court, 

or  in  chancery. 

1.  DEFINITIONS,  ETC.  A  guardian  is  a  person  to  whom  is  dele- 
gated the  authority  to  take  care  of  a  minor,  or  of  his  estate.  The 
minor  in  such  case  is  termed  the  ward. 

There  are  several  kinds  of  guardians  :  First.  Guardians  ly 
nature,  being  the  father,  or,  on  his  death,  the  mother.  This  guard- 
ianship only  extends  to  the  custody  of  the  person,  and  terminates 
when  the  child  attains  the  age  of  twenty-one  years,  (w) 

Second.  Testamentary  guardians  are  such  as  are  appointed  by  a 
will.  Parents  may  dispose  of  the  custody  of  their  children  by  will. 
Such  guardians  supersede  the  claim  of  any  other,  and  their  author- 
ity extends  over  the  person  and  estate  of  the  child. 

(t)  Fisclier  v.  Fischer,  54  111.  231.  See  2  Hill's  C.  L.,  Defenses.     See  Hill's 

(u)  Hickeribotham  v.  Blaekledge,  54  Chan.  Pr.  599. 

111.  316.  (w)  3  Pick.  213  ;  7  Wend.  354. 
(v)  Oreer  v.  Wheeler,  1   Scam.  554. 


108  ESTATES   OF   MINORS.  [CH.  IV. 

Competency  and  appointment  of  guardians. 

Third.  Guardians  appointed  by  the  court  under  some  statutory 
power.  These  are  either  guardians  of  the  person  or  of  the  estate 
of  the  ward  or  of  both. 

Fourth.  Guardians  ad  liiem  are  such  as  are  appointed  by  the 
court,  where  an" infant  is  sued  in  a  civil  proceeding,  to  defend  him 
in  the  same.  Every  court,  when  an  infant  is  sued  therein,  may 
appoint  a  guardian  of  this  character.  His  power  and  duty  only 
extends  to  the  suit  in  which  he  is  appointed. 

As  the  person  appointed  guardian  acts  for  the  infant  on  the 
account  of  his  incapacity,  such  person  should  himself  be  capable. 
Minors,  persons  non  compos,  and  persons  infamous,  are  incompe- 
tent to  act  as  guardians.  Also  such  persons  as  have  an  interest  in 
the  property  adverse  to  the  ward. 

In  general,  the  guardian  stands  in  the  place  of  the  parent  to  the 
ward,  but  not  in  all  respects.  He  is  bound  to  take  care  of  the  per- 
son of  the  ward ;  to  represent  him  in  all  civil  suits  ;  to  lease  the  rea- 
estate  of  the  minor,  and  to  perform  all  acts  of  simple  administra- 
tion ;(x)  to  put  the  money  of  the  ward  at  interest  ;  under  the  direc- 
tion of  the  court,  to  superintend  the  nurture  and  education  of  the 
ward  ;  and  generally  to  act  for  and  in  place  of  the  minor  for  his 
interest,  and  to  render  to  the  proper  court  an  account  of  his  admin- 
istration. 

When  a  guardian  is  appointed  by  a  will,  it  is  from  that  he  derives 
his  power  to  act.  On  the  probate  of  the  will,  he  will  be  entitled  to 
letters  of  guardianship,  which,  in  effect,  amount  to  but  an  authen- 
tication of  his  appointment.  No  particular  set  of  words  are  neces- 
sary in  a  will  to  constitute  a  guardian.  Any  language  showing  the 
intention  of  the  testator  to  confer  on  a  person  designated  the  cus- 
tody of  the  person  or  management  of  the  estate  of  the  ward  will 
be  sufficient.  The  will  being  the  character  of  his  authority,  to  that 
he  must  look  for  the  particular  manner  in  which  he  is  to  act. 

JURISDICTION  .  Courts  in  probate,  in  their  respective  counties, 
may,  when  it  appears  necessary  or  convenient,  appoint  guardians  to 
minors,  inhabitants  of,  or  residents  in  the  same  county,  and  to  such 
as  reside  out  of  this  State,  and  have  an  estate  within  the  same,  in 
the  county  where  the  real  estate  or  some  part  thereof  may  lie  ;  or, 
if  they  have  no  real  estate,  then  in  any  county  where  they  may  have 
personal  property,  (y) 

(x)  1  Bouv.  Inst.  143.  (y)  §  2,  R.  S.  1874,  p.  558. 


OH.  IV.]  ESTATES   OF   MINORS.  109 

Competency  and  appointment  of  guardians. 

2.  THE  STATUTE,  in  relation  to  guardians,  does  not  constitute  a 
complete  code,  but  confers  upon  the  county  court  power  to  appoint 
guardians,  and  to  regulate  their  conduct  in  accordance  with  their 
duties  at  common  law.  Many  of  the  powers  and  duties,  rights  and 
liabilities,  of  guardians  are  not  specifically  defined  by  statute.  It 
contains  such  provisions  as  were  necessary  to  define  the  nature  of 
the  jurisdiction  conferred,  prescribe  the  manner  of  its  exercise,  and 
correct  some  of  the  defects  of  the  law  as  it  then  existed.  In  other 
respects,  the  common  law  regulating  the  powers  and  duties,  rights 
and  liabilities  of  guardians,  is  left  in  force.  At  common  law,  all 
guardians  were  regarded  as  trustees,  clothed  with  such  powers  and 
rights  as  were  necessary  for  the  proper  execution  of  the  trusts 
imposed  upon  them,  and  they  were  held  accountable  for  the  faith- 
ful discharge  of  their  duties.  All  except  the  guardian  in  chivalry 
might  be  compelled,  in  a  court  of  chancery,  to  render  an  account 
before,  as  well  as  after,  the  guardianship  terminated.(z)  The  guard- 
ian was  required  to  take  possession  of  his  ward's  property,  and  he 
was  not  only  liable  for  such  property  as  actually  came  into  his  pos- 
session, but  for  such  as  he  might  have  taken  possession  of  by  the 
exercise  of  diligence  and  without  any  willful  default  on  his  part. 
So,  in  regard  to  the  rents  and  profits  of  the  ward's  lands  and  tene- 
ments, and  the  income  from  every  species  of  his  property,  the 
guardian  was  chargeable  with  what  he  actually  received,  and  with 
what  he  might  have  received  had  he  faithfully  discharged  his 
duties,  (z) 

The  guardian  should  render  to  the  county  court  yearly  accounts, 
and,  where  he  has  used  the  money  of  his  ward,  he  should  charge 
himself  with  interest  from  the  time  he  received  it.  At  such  ren- 
dering of  an  account,  the  interest  should  be  made  a  part  of  the 
principal,  and  interest  computed  on  the  balance  in  the  guardian's 
hands  up  to  the  next  annual  rendering  of  his  account,  (z) 

Where  the  probate  court  appointed  a  guardian  to  two  orphan 
minors,  under  the  age  of  fourteen  years,  for  the  full  time,  until 
they  should  respectively  attain  the  age  of  eighteen  years:  Held, 
that  the  appointment  was  valid.  And,  also,  in  case  the  minors, 
after  they  attained  the  age  of  fourteen  years,  neglected  to  choose 
guardians  for  themselves,  the  guardian  already  appointed  by  the 

(z)  Bond  v.  Lockwood,  33  111.  212. 


110  ESTATES   OF   MINOBS.  [CH.   IV. 


Competency  and  appointment  of  guardians, 

probate  court  would  continue  to  act  in  his  office  until  the  said 
minors  attained  their  majority.(a) 

A,  the  testator,  by  his  will,  appointed  his  wife  guardian  to  his 
infant  daughter  "  so  long  as  she  should  remain  Ms  widow."  After 
his  decease,  his  widow  took  out  letters  of  guardianship  for  the 
daughter  from  the  probate  court  of  the  proper  county.  Held,  that 
the  appointment  of  the  probate  court  was  void  for  want  of  jurisdic- 
tion. The  authority  of  the  father  to  name  a  guardian  for  his 
children  is  greater  than  that  conferred  upon  the  probate  court ;  and, 
when  the  former  has  exercised  the  right,  the  latter  cannot  act.(J) 

3.  In  determining  the  fitness  of  the  person  to  whom  the  custody 
of  infants  shall  be  given  to  act  as  guardian,  the  court  of  chancery 
is  not  bound  down  by  any  particular  form  of  proceeding.    The  best 
interests  of  the  child  must  be  consulted,  (c) 

When  the  aid  of  a  court  of  chancery  is  once  invoked  to  provide 
for  the  guardianship  of  infants,  in  case  of  separation  of  the  parents, 
such  infants  become  the  wards  of  the  court,  and  it  will  not  permit 
them  to  be  removed  beyond  its  jurisdiction,  or  permit  either  parent 
to  alienate  the  affections  of  the  infants  from  the  other.(<?) 

4.  GUARDIANS.     If  a  minor  is  under  the  age  of  fourteen  years. 
the  county  court  may  nominate  and  appoint  his  guardian.     If  he  is 
above  that  age,  he  may  nominate  his  own  guardian,  who,  if  approved 
by  the  court,  shall  be  appointed  accordingly ;  if  not  approved  by  the 
court,  or  if  the  minor  reside  out  of  the  State,  or  if,  after  being 
cited,  he  neglects  to  nominate  a  suitable  person,  the  court  may  nom- 
inate and  appoint  his  guardian  in  the  same  manner  as  if  he  were 
under  the  age  of  fourteen  years.(e) 

5.  APPLICATION  FOR  APPOINTMENT.     Upon  application  being 
made  for  the  appointment  of  a  guardian,  unless  the  proper  persons 
are  before  it,  the  court  shall  assign  a  day  for  the  hearing  thereof, 
and  shall  direct  such  notice  of  the  hearing  to  be  given  to  the  rela- 
tives of  the  minor  residing  in  the  county  as  he  shall,  on  due  inquiry, 
think  reasonable.     When  any  person  shall,  at  the  same  time,  be 
appointed  guardian  for  several  minors,  the  court  may,  if  the  estate 

(a)  Young  v.  Lorain,  11  111.  625.  (d)  Miner  v.  Miner,  11  111.  43. 

(b)  Holmes  v.  Field,  12  111.  424.  (e)  %  3,  R.  S.  1874,  p.  558  ;  Cothran'8 

(c)  Cowls  v.  (Jowls,  3  Qilm.  435  ;  Peti-  Statutes,  p.  766. 
tion  of  Smith,  13111.  139. 


CH.  IV.]  ESTATES   OF   MINORS.  Ill 

Competency  and  appointment  of  guardians. 

shall  be  so  situated  as  to  make  it  more  convenient  or  advantageous 
to  the  interest  of  the  ward,  include  all  in  one  bond. 

How  TO  BE  APPOINTED  GUARDIAN.  If  the  minors  are  over  fourteen 
years  of  age,  bring  them  personally  before  the  court  to  select  their 
guardian  ;  obtain  petition  and  bond  in  blank  from  the  clerk ;  fill 
them  out ;  then  file  them  with  the  clerk ;  pay  his  costs ;  call 
the  court's  attention  to  the  petition  ;  have  two  securities  sworn  and 
accepted  by  the  court,  and  the  bond  approved.  The  penalty  in 
the  bond  should  be  in  no  case  less  than  double  the  amount  of  the 
minor's  personal  estate  and  six  times  the  amount  of  the  gross 
annual  income  of  the  minor's  real  estate.  If,  however,  such  real 
estate  is  improved,  or  is  covered,  in  whole  or  in  part,  with  timber, 
or  is  improved  in  part  and  in  part  covered  with  timber,  the  penal 
sum  in  said  bond  shall  be  increased  by  an  amount  at  least  double 
the  value  of  the  said  improvements1,  or  of  said  timber,  or  both,  as 
the  case  may  be.(z) 

The  following  forms  may  be  used  : 

6.  PETITION  TO  BE  APPOINTED  GUARDIAN  OF  MINORS. 

STATE  OF  ILI/NOIS,  )  In  the  Court  of          county, 

County  of  ,  f sa  term,  A.  D.  18     . 

1o  the  Hon.  ,  judge  of  said  court : 

Your  petitioner,  ,  who  resides  at  No.         street,  ,  Illinois,  respect- 

fully represents  that  ,  late  of  ,  died,  leaving  his  children,  herein- 

after named,  who  are  all  residents  of  said  county,  and  now  living  with 

,  at  No.        street,  ;  that  they  are  all  infants  under  fourteen  years 

of  age,  to  wit 

,  aged  years,  on  the  day  of  ,  A.  D.  18     ; 

that  said  infants  have  no  guardian,  and  that  the  names  and  residences  of  their 
relations  are  as  follows  :  ;  that  they  have  real  and  personal  estate,  the 

entire  value  of  which  does  not  exceed  dollars  ;  that  it  is  composed  of  the 

following  items  :  ;  that  the  interest  of  each  of  said  infants  in  said  prop- 

erty is  one  part. 

Wherefore,  your  petitioner  prays  that  your  honor  nominate  and  appoint 
your  petitioner  (or  such  other  person  as  to  your  honor  shall  seem  proper) 
guardian  of  the  persons  and  estates  of  said  infants,  until  they  arrive  at  four- 
teen years  of  age,  and  until  another  guardian  shall  be  appointed,  and  that  all 
other  orders  necessary  may  be  made.  ,  Petitioner 

STATE  OF  ILLINOIS,) 

County  of  ,] 

,  being  duly  sworn,  deposes  and  says,  that  he  knows  the  contents  of 
the  above  petition,  and  that  the  statements  therein  are  true. 

Sworn  to  and  subscribed  before  me 
clerk  of  the  county  court  of  county, ! 

this        day  of  ,  A.  D.  18     . 

,  Clerk. 

The  person  making  such  representation  may  state  any  other  facts 
(z)  Cothran's  Stats.,  768. 


112  ESTATES   OF   MINORS.  [CH.  IV. 

Competency  and  appointment  of  guardians. 

showing  the  necessity  or  propriety  for  the  appointment  of  a  guard- 
ian, though  the  above  form  contains  probably  all  that  is  required. 
Upon  filing  such  representation  in  court,  a  citation  will  issue  to  the 
minor,  and  will  be  served  upon  him  by  the  officer  of  the  court. 

7.  CITATION  TO  A  MINOR. 

STATE  OF  ILLINOIS,  ) 

County.     )  ** 

The  people  of  the  State  of  Illinois  to  A  B,0  D,E  F,  minors,  etc. : 

Whereas,  it  has  been  represented  by  to  the  county  court  of 

county,  at  the  last  term  thereof,  that  you,  the  said  A  B,  C  D,  E  F,  are 

orphan  minors  above  the  age  of  fourteen  years  respectively,  and  have  no 
guardian ;  you  are,  therefore,  hereby  cited  to  appear  before  the  said  court,  at 
the  next  term  thereof,  to  be  holden  at  the  court-house  in  said  county  on 

the        day  of  next,  and  choose  a  guardian  ;  in  default  whereof,  the  said 

court  will  appoint  one  for  you. 

Witness  my  hand  and  the  seal  of   said  court,  at  ,  in  said 

[SEAL.]    county,  this        day  of  ,  A.  D.  18 

E  F,  Clerk  County  Court. 

This  should  be  served  by  reading  and  leaving  with  each  a  copy. 
The  officer  serving  such  notice  should  return  to  the  county  court 
the  original,  with  his  return  indorsed  thereon. 

On  the  return  day,  if  the  minor  appear  and  make  his  choice,  and 
the  court  deem  the  person  so  chosen  capable,  the  selection  is  con- 
firmed, and  letters  of  guardianship  are  issued  upon  his  qualifying. 
If  the  minor  fail  to  appear,  or,  appearing,  neglect  to  choose  a  guard- 
ian, then  the  court  will  appoint  one  for  him,  the  same  as  if  such 
minor  were  under  fourteen  years  of  age. 

If  the  minor  be  under  the  age  of  fourteen,  it  is  not  necessary  to 
issue  a  notification.  The  person  desiring  the  appointment  of  guard- 
ian makes  known  to  the  court  the  fact  that  such  minor  is  an 
orphan,  the  father  being  dead,  is  under  the  age  of  fourteen  years, 
and  is  within  the  jurisdiction. 

8.  PETITION  OF  MINORS  TO  HAVE  GUARDIAN  APPOINTED. 

STATE  OF  ILLINOIS,  )  In  the  County  Court  of          county, 

County  of  .  \  term,  A.  D.  18    . 

To  the  Hon.  ,  Judge  of  said  court : 

Tour  petitioners  respectfully  represent,  that  ,  late  of  ,  died,  leav- 

ing your  petitioners  his  children,  who  are  all  residents  of  said  county. 


CH.  IV.J  ESTATES   OF   MINORS.  113 

Competency  and  appointment  of  guardians. 

and  now  living  with  ,  at  No.  street ;  that  they  are  all  minors  above 

fourteen  years  of  age,  to  wit : 

years,  on  the  day  of  ,  A.  D.  18     ; 

years,  on  the  day  of  .  A.  D.  18     ; 

years,  on  the  day  of  ,  A.  D.  18     ; 

that  your  petitioners  have  no  guardian,  and  that  the  names  and  residence  of 
their  relations  are  as  follows :  .  ;  that  they  have  real  and  personal  estate, 
the  entire  value  of  which  does  not  exceed  dollars ;  that  it  is  composed  of 

the  following  items :  ;  that  the  interest  of  each  of  your  petitioners  in  said 

property  is  one  part. 

That  your  petitioners  do  hereby  make  choice  of  ,  of   No.  ,  as 

guardian  of  their  persons  and  estates,  subject  to  the  approval  of  this  honorable 
court ;  that  he  is  a  suitable  person  to  be  such  guardian,  and  has  consented  to 
act  if  appointed.  Wherefore,  your  petitioners  pray  that  your  honor  appoint 
the  said  (or  such  other  fit  and  proper  person  as  your  petitioners  may  here 

after  choose)  guardian  of  the  persons  and  estates  of  your  petitioners  during 
their  minority,  and  that  all  other  orders  necessary  may  be  mnde. 

AB, 

C  D,  etc. 

STATE  OP  ILLINOIS,) 
County  of  .  f  8S ' 

,  being  duly  sworn,  deposes  and  says,  that  he  knows  the  contents  of 
the  above  petition,  and  that  the  statements  therein  are  true. 

Sworn  to  and  subscribed  before  me, 
clerk  of  the  county  court  of  county,  this  ] 

day  of  ,  A.  D.  18    .' 

,  Clerk. 

I',  ,  the  person  named  in  the  above  petition,  do  hereby  consent  to 

become  the  guardian  of  the  above-mentioned  minors,  pursuant  to  the  prayer 
of  the  foregoing  petition.  L.  A.  H 

9.  GUARDIAN'S  BOND. 

Know  all  men  by  these  presents,  that  we,(l)  ,  of  the  county  of 

and  State  of  Illinois,  are  held  and  firmly  bound  unto  the  people  of  the  State 
of  Illinois,  for  the  use  of  ,  minor  ,  in  the  penal  sum  of  dollars,  cur- 

rent money  of  the  United  States,  which  payment,  well  and  truly  to  be  made  and 
performed,  we  and  each  of  us  do  hereby  bind  ourselves,  our  heirs,  executors, 
administrators  and  assigns,  jointly,  severally  and  firmly,  by  these  presents. 

Witness  our  hands  and  seals,  this        day  of  ,  A.  D.  18    .(2). 

The  conditions  of  the  bond  are  prescribed  by  statute.     They  are 
as  follows  : 

(1)  1.  INSTRUCTIONS  FOR  FILLING  UP  THE  BOND.  Write  the  names  of  all  parties  men- 
tioned in  the  bond  in  full. 

2.  There  should  be  two  securities  in  this  bond,  and  it  should  be  executed  in  the 
presence  of  the  court.  All  parties  to  it  must  be  present. 

15 


114  ESTATES   OF   MINORS.  [CH.  IV. 

Competency  and  appointment  of  guardians. 

"  The  condition  of  this  obligation  is  such,  that  if  the  above  bounden  (name 
of  guardian),  who  has  been  appointed  guardian  of  (name  of  infant),  shall  faith- 
fully discharge  the  office  and  trust  of  such  guardian  according  to  law,  and 
shall  make  a  true  inventory  of  all  the  real  and  personal  estate  of  the  ward 
that  shall  come  to  his  possession  or  knowledge,  and  return  the  same  unto  the 
court  of  county,  at  the  time  required  by  law,  and  manage  and  dis- 

pose of  all  such  estate  according  to  law  and  for  the  best  interest  of  said  ward, 
and  faithfully  discharge  his  trust  in  relation  thereto,  and  to  the  custody,  nur- 
ture and  education  of  said  ward,  and  render  an  account,  on  oath,  of  the  prop- 
erty in  his  hands, 

and  of  the  management  and  disposition  of  all  such  estate  within 
one  year  after  his  appointment,  and  at  such  other  time  as  shall  be  required  by 
law  or  directed  by  the  court,  and,  upon  removal  from  office,  or  at  the  expira- 
tion of  his  trust,  settle  his  accounts  in  said  court,  or  with  the  ward  or  his  legal 
representatives,  and  pay  over  and  deliver  all  the  estate,  title,  papers  and 
effects  remaining  in  his  hands  or  due  from  him  on  such  settlement  to  the  per- 
son or  persons  lawfully  entitled  thereto,  then  this  obligation  shall  be  void ; 
otherwise,  to  remain  in  full  force  and  virtue,  "(g) 

[SEAL.] 
[SEAL.] 
[SEAL.] 

10.  SUITS  ON  BONDS.    Bonds  may  be  put  in  suit  in  the  name  of 
the  people  of  the  State  of  Illinois,  to  the  use  of  any  person  enti- 
tled to  recover  on  a  breach  thereof,  and  damages  assessed  and  pro- 
ceedings had  thereon  as  in  other  cases  of  penal  bonds.  (A) 

11.  APPOINTMENT  OF  A  GUARDIAN  OF  A  MINOR'S  ESTATE  WHEN 
THE  FATHER  is  LIVING.     The  proper  mode  of  bringing  such  a  case 
before  the  court  is  by  the  petition  of  some  friend  of  the  minor,  viz. : 

FORM  OP  PETITION  FOR  APPOINTMENT  OF  GUARDIAN  OF  A  MINOR'S  ESTATE. 

STATE  OF  ILLINOIS,  J  County  Court  of          county, 

County. )"  ?  term,  A.  D.  18    . 

To  the  Hon.  ,  judge  of  said  court : 

The  undersigned,  C  D,  respectfully  represents  that  E  F,  of  said  county,  is  a 
minor,  of  the  age  of  fourteen  years,  and  is  the  child  of  Q  F,  of  said  county, 
now  living ;  that  one  D  B,  late  of  county,  deceased,  by  his  last  will  and 

testament,  which  has  been  duly  probated  in  said  last-mentioned  county,  and  a 
certified  copy  of  which  is  hereto  attached,  marked  "  Exhibit  A,"  granted  and 
devised  in  fee  to  the  said  E  F  the  following  real  estate,  situate  in  the  county 
of  aforesaid,  to  wit :  (Here  describe  the  property.)  That  the  said  real 

estate  is  improved,  and,  unless  it  be  properly  managed,  the  improvements 
thereon  will  become  impaired,  and  the  value  of  the  property  diminished. 

And  your  petitioner  further  shows,  that  the  said  G  F  is  not  a  proper  per- 

(g)  Cothran's  Anno.  Statutes,  768,  g  7.        (h)  £  11,  id. 


CH.   IV.  J  ESTATES   OF   MIXOKS.  115 

Competency  and  appointmen  t  of  guardians. 

son  to  have  the  charge  and  management  of  said  estate,  on  account  of  drunken- 
ness and  vagrancy  (or  whatever  may  be  the  case) ;  wherefore,  your  petitioner 
prays  that  a  guardian  be  appointed  for  said  minor,  to  manage  the  said  estate, 
and  that  a  citation  issue  to  said  G  F,  to  show  cause  why  such  guardian  should 
not  be  appointed,  returnable  to  the  next  term  of  this  court. 

And  your  petitioner  will  ever  pray,  etc. 

Dated  ,  18     .  CD. 

On  filing  such  petition,  THE  CITATION  should  be  served  and 
returned  as  in  other  cases. 

If  good  cause  against  the  petition  be  not  shown,  and  the  charges 
therein  be  supported,  the  court  will  order  that  a  guardian  be 
appointed ;  and,  in  case  the  minor  be  over  fourteen  years  of  age,  it 
will  further  order  that  a  citation  be  issued  to  said  minor,  directing 
him  to  appear  before  said  court,  at  a  time  to  be  therein  specified, 
and  choose  a  guardian.  If  he  choose  an  unfit  person,  the  court 
will  not  confirm  his  choice,  and,  if  he  persists  in  such  improper 
choice,  will  treat  it  as  a  refusal  or  neglect  to  choose,  and  may  pro- 
ceed the  same  as  if  such  minor  had  openly  refused  or  wholly  neg- 
lected to  make  a  choice. 

The  father  of  an  infant,  though  his  natural  guardian,  has  no 
power  to  lease  his  land,  nor  authority  to  demand  and  receive  a 
legacy.  The  guardian  by  nature,  the  father,  or,  in  case  of  his  death, 
the  mother,  having  no  authority  over  the  estate  of  his  or  her  child, 
but  only  control  over  its  person,  the  appointment  of  a  guardian  is 
necessary  for  the  purpose  of  leasing  lands  or  dealing  on  account  of 
such  minor's  estate. 

12.  THEKE  AKE  SOME  OTHER  CASES  where  it  might  be  eminently 
proper  that  a  guardian  should  be  appointed,  especially  while  the 
parents  are  yet  living.  By  stating  in  plain,  perspicuous  language 
the  grounds  on  which  any  one  deems  it  "  necessary  or  convenient " 
that  a  guardian  of  a  minor  should  be  appointed,  in  a  petition  simi- 
lar in  character  and  form  to  those  already  given,  and  verifying  the 
petition,  the  court  has  full  original  jurisdiction  to  act  If  the  facts 
stated  are  denied,  the  court  may  settle  the  disputed  questions  by 
citing  the  interested  parties  before  it,  and  taking  testimony  in  a 
summary  manner. (i) 

The  bond,  of  course,  should  be  quite  like  the  form  given  in  the 
above  cases. 

(t)  See  p.  112,  supra  ;  see  p.  120,  infra 


116  ESTATES   OF   MINORS.  [CH.  IV. 

Competency  and  appointment  of  guardians. 

Upon  granting  the  application,  letters  of  guardianship  issue. 

13.  LETTERS  OF  GUARDIANSHIP. 

STATE  OP  ILLINOIS,  ) 
County  of  .  J  * 

The  people  of  the  State  of  Illinois  to  ,  of  said  county,  greeting : 

Whereas,  you  were,  by  the  county  court  of  said  county,  on  the        day  of 
,  A.  D.  18    ,  appointed  guardian    of  the  person    and  estate    of : 

,  aged  years,  on  the  day  of  ,  A.  D.  18     ; 

,  aged  years,  on  the  day  of  ,  A.  D.  18    ; 

minor    of  said  county  ;  and  whereas,  you  have  complied  with  the  condi- 

tions of   said  appointment  by  giving  bond,  with  two  sureties,  in  the  penal 
sum  of  dollars,  which  bond  has  been  approved  by  said  court. 

Now,  therefore,  know  ye,  to  whom  these  presents  shall  come,  that  the  said 
is  the  duly  constituted  guardian  of  the  person  and  estate  of  said 
minor  ,  and  is  authorized  and  required  to  have  the  care  and  custody  of  h 
person  and  estate  ;  to  present  to  said  court,  within  three  months  from  the 
date  hereof,  a  just  and  true  inventory,  under  oath,  of  all  the  real  and  personal 
estate  belonging  to  said  minor  ;  to  lease  the  real  estate  of  said  minor,  upon 
such  terms  and  for  such  time  as  said  court  shall,  by  its  order,  direct ;  to  render 
an  account  of  h  guardianship  to  said  court  for  adj  ustment  within  one  year 
from  the  date  hereof,  and  every  year  thereafter,  until  discharged  by  order  of 
said  court ;  to  put  to  interest  the  money  of  said  minor  upon  security  to  be 
approved  by  said  court ;  to  superintend,  under  the  direction  of  said  court,  the 
education  and  nurture  of  said  minor,  and  for  that  purpose  may  pay  out  such 
portion  of  said  minors'  money  as  the  said  court  shall,  from  time  to  time,  by 
order,  direct. 

And  also  to  do  whatever  else  the  law  requires  of  a  guarditn  of  the  persons 
and  estates  of  minors. 

Witness  ,  clerk  of  said  court,  and  the  seal  thereof,  at  the  of         , 

in  said  county,  this        day  of  ,  A.  D.  18     .  ,  Clerk. 

STATE  OF  ILLINOIS. 

County  of 

I,  ,  clerk  of  the  county  court  of  county,  in  the  State  aforesaid,  do 

hereby  certify  that  the  within  is  a  true  and  correct  copy  of  letters  granted  on 
,  to  ,  as  guardian  of  the  person  and  estate  of  ,  minor,  and  the 

same  have  not  been  revoked  by  this  court. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  the  seal  of  the  county 

court,  at  ,  in  the  State  aforesaid,  this        day  of  ,  18     . 

,  Clerk. 

STATE  OP  ILLINOIS,  ) 
County  of  .  J  ** 

,  being  duly  sworn,  deposes  and  says,  that  he  knows  the  contents  of 
the  above  petition,  and  that  the  statements  therein  are  true. 

Sworn  to  and  subscribed  before  me, 
clerk  of  the  county  court  of  ,  county,! 

this        day  of  ,  A.  D.  18 

,  Clerk. 


CH.  IV.  1  ESTATES   OF   MINORS.  11? 

t 

Competency  and  appointment  of  guardians. 

I,  ,  the  person  named  in  the  above  petition,  do  hereby  consent  to 

become  the  guardian  of  the  above-mentioned  minors,  pursuant  to  the  prayer  of 
the  foregoing  petition.  L.  A.  H. 

14.  GUARDIAN  AD  LITEM  IN  A  JUSTICE  COURT.    Where  an  infant 
is  sued  for  necessaries  in  such  a  court,  he  cannot  appear  and  defend; 
a  guardian  ad  litem  should  be  appointed,  or  his  guardian  should  be 
sued  if  he  have  one  of  record,  (j) 

15.  GUARDIAN  AD  LITEM  AT  COMMON  LAW  AND  IN  CHANCERY.(&) 
On  filing  an  affidavit,  or  pleading  properly  verified,  showing  the 
infancy  of  a  defendant,  the  court  should  appoint  a  guardian  ad 
litem  for  such  infant  defendant. 

In  chancery,  the  complainant  must  see  to  it  that  the  infant 
defendants  are  brought  in  by  guardian  ad  litem,  or  that  they  appear 
by  next  friend.(&) 

AFFIDAVIT  OF  INFANCY. 

( Title  of  cause.) 
( Venue.) 

C  D,  being  duly  sworn,  says  that  he  is  the  defendant  named  in  the  above 
entitled  cause,  and  is  now  but  years  old ;  that  he  was  born  at  ,  on 

the        day  of  ,  A.  D.  18    ,  and  is  aged  years  and  months. 

(Jurat.)  C  D. 

The  clerk  should  enter  this  order. 

ORDER  OF  APPOINTMENT. 

It  appearing  to  the  court  that  C  D,  named  as  defendant  in  this  cause,  is  an 
infant,  ordered,  that  E  F,  of  ,  be,  and  hereby  is,  appointed  guardian  ad 

litem  for  said  C  D,  to  appear  and  defend  for  him,  the  said  C  D,  herein. 

If  the  guardian  ad  litem  then  appear  and  plead,  it  is  evidence  of 
his  accepting  the  trust.  In  a  justices'  court,  the  guardian  should 
sign  an  acceptance  on  the  docket. 

ACCEPTANCE. 

I  hereby  accept  the  appointment  of  guardian  ad  litem  for  C  D  in  this  cause 

EF. 

(j)  1  Chitty's  PI. ;  Stephen's  PL  ;  §  (k)  See  Hill's  Chancery  Pr.,  Infants 
18,  act  April  10, 1872.  See  appendix,  infra. 


118  ESTATES   OF   MINORS.^  [CH.  IV 


Powers  and  duties  of  guardians. 


SECTION  III.  —  THE  POWEES  AND  DUTIES  OF  GUAKDIANS. 

1.  Generally. 

2.  A  guardian  cannot  appoint  an  attorney  in  fact  to  execute  a  deed ;  under 

decree  or  order  of  court  of  chancery,  he  may  make  compromises ;  the 
power  to  mortgage  the  ward's  land  is  limited. 

3.  He  may,  under  a  decree,  sell  real  estate. 

4.  Guardians  are  not  allowed  to  make  gain  to  themselves. 

5.  Supervision  of  the  trust. 

6.  The  husband  of  a  guardian  cannot  act  without  express  authority  from 

the  guardian. 

7.  Fraudulent  proceedings  instituted  by  a  mother  are  open  to  attack,  and  how. 

8.  A  third  person,  generally,  cannot  question  the  power  and  acts  of   the 

guardian.  A  guardian  has  no  power  to  sell  the  real  estate  of  his  ward 
unless  authorized  by  a  court  of  competent  jurisdiction,  or  by  legislative 
enactment.  The  power  must  be  strictly  pursued,  it  is  a  naked  power. 

9.  Fraud ;  caveat  emptor,  how  applied. 

10.  To  act  for  the  ward  generally. 

11.  Guardian  ad  litem. 

12.  Custody  of  child  may  be  willed. 

13.  Removal  from  another  State,  and  charge  therefor. 

14.  Custody  may  be  to  one  and  guardianship  to  another. 

15.  Testamentary  guardian. 

16.  Must  be  commissioned. 

17.  Frugally  to  manage  the  ward's  estate. 

18.  And  educate  the  ward. 

19.  If  the  guardian  neglects  to  educate,  the  court  may  interfere. 

20.  To  invest  funds,  or  be  chargeable  with  interest  for  neglect. 

1.  THE   POWERS  AND   DUTIES  OF  GUARDIANS   GENERALLY.      The 

guardian  of  a  minor  shall  have,  under  the  direction  of  the  court, 
the  custody,  nurture  and  tuition  of  his  ward,  and  the  care  and 
management  of  all  his  estate.  But  the  father  of  the  minor,  if 
living,  and,  in  the  case  of  his  death,  the  mother,  they  being  respect- 
ively competent  to  transact  their  own  business,  and  fit  persons,  shall 
be  entitled  to  the  custody  of  the  person  of  the  minor  and  the  care 
of  his  education.  In  case  the  father  and  mother  shall  liye  apart, 
the  court  may,  for  good  reason,  award  the  custody  and  education  of 
the  minor  to  the  mother  or  other  proper  person,  (a) 

2.  A  guardian  CANNOT  APPOINT  AN  ATTORNEY  to  execute  a 
deed.(J)     He  may  make  compromises  under  the  direction  of  a  court 
of  chancery,(c)  but  he  cannot  make  admissions  to  bind  an  infant.(d') 

(a)  §  4,  R.  S.  1874,  p,  559.  (d)  Cochran  v.  McDowell,  15  111.  10  ; 

(b)  Mason  v.  Wait,  4  Scam.  127.  Reddick  v.  President  State  Bank,  27  id, 

(c)  King  v.  King,  15  111.  187.  148. 


CH.  IV.]  ESTATES   OF  MINORS.  119 


Guardian  and  ward. 


Power  to  mortgage  the  ward's  land  is  limited,  (e)  He  may,  under 
a  decree,  sell  real  estate. 

3.  The  decree  need  not  fix  the  precise  day  nor  hour.     It  is  suffi- 
cient if  the  court  fixes  certain  reasonable  limits  within  which  the 
sale  shall  be  held,  and  requiring  the  guardian  to  give  due  notice. 
The  guardian  may  exercise  some  discretion  in  a  mode  favorable  to 
the  ward's  interest.  (/)     And  as  to  parties  to  sale,  sufficiency  of 
notice  of  application  to  sell,  and  method  of  masters  reporting  evi- 
dence^/) 

It  is  not  necessary  that  it  should  appear  that  the  probate  court 
had,  prior  to  the  application  to  sell  the  land,  ordered  and  directed 
the  guardian  to  provide  for  the  support  and  education  of  his  ward, 
before  the  action  of  the  probate  court  in  the  premises.^) 

In  proceedings  by  administrator  to  sell  real  estate  of  decedent,  a 
guardian  cannot  admit  service  of  the  summons  for  the  minor 
heirs,  (h) 

4.  GUARDIANS  ABE  NOT  ALLOWED  TO  MAKE  GAIN  TO  THEMSELVES 

of  trust  property  in  their  hands.  They  are  required  to  put  on 
interest  the  moneys  of  their  wards  upon  mortgage  security  or  in 
U.  S.  securities  when  the  sum  loaned  is  over  $100,  for  a  time  not 
to  exceed  three  years.  In  this  State,  the  statute  permits  the 
guardian  to  lease  the  real  estate  of  the  ward  upon  such  terms  and 
for  such  length  of  time,  not  extending  beyond  the  minority 
of  the  ward,  as  the  probate  court  shall  approve.  If  a  guardian 
neglects  his  duty  in  this  respect,  he  will  be  chargeable  with 
interest  after  a  reasonable  time  has  elapsed  within  which  to 
make  an  investment.  Six  months  from  the  receipt  of  the  money 
has  been  deemed  a  reasonable  time  for  that  purpose. 

5.  SUPERVISION  OF  THE  TRUST.     It  is  a  general  rule  of  the  com- 
mon  law  that  the  expenses  of  an  infant  or  ward   shall  be  kept 
within  the  income  or  produce  of  his  estate,  but  the  statute  provides 
that  the  court,  sitting  in  probate,  may  order  the  sale  of  real  estate 
of  the  ward  for  his  support  and  education,  when  necessary,  or  for 
re-investment,  (i) 

6.  The  husband  of  a  guardian  has  no  right  to  possess  or  control 
the  estate  of  the  ward,  and  a  payment  to  him  on  account  of  such 

(e)  Merritt  v.  Simpson,  41  111.  391.  (k)  Clark  v.  Thompson,  47  HI.  25. 

(/)  Campbell  v.  Harmon,  43  111.18.  (i)  Davis,    Adm'r,    v.    Harkness,    1 

(g)  Mulford  v.  Stalzenback,  46  111.  Gilm.  173  ;  Cummins  v.  Cummins,  15 

303.  111.  33;  Cothran's  Statutes,  771,  §  28. 


ESTATES   OF   MINORS.  [CF-   IV 


Powers  and  duties  of  guardians. 


estate  is  void,  unless  with  the  express  sanction  or  direction  of  the 
guardian.(&) 

7.  Where  a  mother,  in  conjunction  with  the  guardian  of  infants, 
presents  a  claim  for  their  nurture,  which  is  allowed,  and  proceeds 
thereupon  to  have  the  estate  of  the  deceased  father  sold,  and  par- 
celed out  to  the  mother,  in  fraud  of  the  children,  the  whole  proceed- 
ing, even  upon  the  motion  of  a  stranger,  may  be  set  aside  and  held 
void.     It  is  the  duty  of  the  guardian  to  contest  such  a  claim,  and 
he  is  an  incompetent  witness  to  establish  it.(Z) 

8.  A  third  person  cannot  question  the  power  and  acts  of  a  guard- 
ian, except  when  such  person's  rights  depend  upon  the  existence 
and  due  exercise  of  the  powers  of  the  guardian,  (m) 

A  GUARDIAN"  HAS  NO  POWER  TO  SELL  THE  REAL  ESTATE  OF  HIS 

"WARD,  unless  authorized  by  the  court,  or  perhaps  by  the  legisla- 
ture. (m) 

Such  a  power  must  be  considered  as  a  naked  power,  and   be 
strictly  pursued,  (m) 

9.  FRAUD.    The  principle  of  caveat  emptor  applies  to  a  guardian's 
sale;  and  a  suppressio  veri  on  the  part  of  the  guardian  will  not 
invalidate  the  sale  or  enable  the  purchaser  to  rescind  it.    Aliter  of 
a  suggestio  falsi.(m) 

10.  To  ACT  FOR  THE  WARD  GENERALLY.    The  guardian  shall  set- 
tle all  accounts  of  his  ward,  and  demand  and  sue  for,  and  receive  in 
his  own  name  as  guardian,  all  personal  property  of,  and  demands 
due  the  ward,  or,  with  the  approbation  of  the  court,  compound  for 
the  same,  and  give  a  discharge  to  the  debtor  upon  receiving  a  fair 
and  just  dividend  of  his  estate  and  effects.(w) 

11.  AD  LITEM.    He  shall  appear  for  and  represent  his  ward  ix 
ALL  LEGAL  SUITS  AND  PROCEEDINGS,  unless  another  person  is 
appointed  for  that  purpose,  as  guardian  or  next  friend;  but  nothing 
contained  in  this  act  shall  impair  or  affect  the  power  of  any  court 
or  justice  of  the  peace  to  appoint  a  guardian  to  defend  the  interest 
of  a  minor  impleaded  in  such  court  or  interested  in  a  suit  or  matter 
therein  pending,  nor  their  power  to  appoint  or  allow  any  person,  as 
next  friend  for  a  minor,  to  commence,  prosecute  or  defend  any  suit 
in  his  behalf.(o) 

(*)    Holmes  v.  Field,  12  111.  424.  (n)  §  17,  R.  S.  1874,  p.  560. 

(0    Exparte  Guernsey,  21  111.  443.  (o)  §  18,  id. 

(m)  Mason  v.  Wait,  4  Scam.  127. 


CH.   IV.]  ESTATES   OF   MINORS. 


Guardian  and  ward. 


12.  CUSTODY  OF  CHILD  MAY  BE  WILLED.    The  father,  being  of 
sound  mind  and  memory,  of  a  child  likely  to  be  born,  or  of  any 
living  child,  being  a  minor  and  unmarried,  may,  by  his  last  will,  dis- 
pose of  the  custody  and  tuition  of  such  child,  to  continue  during 
its  minority,  or  for  a  less  time :  Provided,  no  such  will  shall  take 
effect  to  deprive  the  mother,  during  her  life,  of  the  custody  and 
tuition  of  the  child,  without  her  consent,  if  she  be  a  fit  and  compe- 
tent person  to  have  such  custody  and  tuition.    The  mother  being 
of  sound  mind  and  memory,  and  being  sole  or  surviving  the  father 
of  her  child,  may,  in  like  manner,  dispose  of  the  custody  and  tuition 
of  such  child,  (p) 

13.  Where  a  testator  appointed  a  person  permanently  residing  in 
another  State  guardian  for  his  children,  it  will  be  inferred  that  he 
expected  the  guardian  would  remove  the  children  to  that  State,  and 
the   expense  of   removing  the  children  will  be  a  proper  charge 
against  the  estate,  (q)    Although  it  is  generally  necessary  that  an 
order  should  be  obtained  from  the  probate  court  before  expendi- 
tures are  made  for  wards,  yet  the  rule  may  be  deviated  from  under 
extraordinary  circumstances.^) 

14.  CUSTODY  MAY  BE  TO  ONE  AND  GUARDIANSHIP  TO  ANOTHER. 
The  guardianship  of  the  infant's  estate  may  be  appointed  to'  one 
and  the  custody  and  tuition  of  the  minor  to  another,  (r) 

15.  A  TESTAMENTARY  GUARDIAN  shall  have  the  same  powers  and 
perform  the  same  duties  within  the  scope  of  his  appointment  as  a 
guardian  appointed  by  the  county  eourt.(s) 

16.  MUST  BE  COMMISSIONED.    A  testamentary  guardian,  except 
for  the  custody  and  tuition  of  the  minor,  shall,  before  he  can  act, 
be  commissioned  by  the  county  qourt  of  the  proper  county,  and  give 
the  bond  prescribed  in  section  seven  of  this  act,  except  that,  Avhen 
the  testator  has  requested  in  his  will  that  a  bond  be  not  required,  it 
shall  not  be  required  unless  from  a  change  in  the  situation  or  cir- 
cumstances of  the  guardian,  or  for  other  sufficient  cause  the  court 
shall  deem  it  necessary  to  require  it.(£) 

17.  FRUGALLY  TO  MANAGE  THE  ESTATE.     The  guardian  shall 
manage  the  estate  of  his  ward  frugally  and  without  waste,  and 
apply  the  income  and  profit  thereof,  so  far  as  the  same  may  be  nec- 

(p )  §  5,  R.  S.  1874,  p.  559.  (*)  §  8,  R.  S.  1874,  p.  559. 

(g)  Cummins  v.  (himmins,  29  111.  452.        (t)  §  9  id. 
•r)§  6,  R.  S.  1874, p.  559. 

16 


122  ESTATES   OF  MINORS.  [CH.  IV. 

Resignation  and  removal  of  guardians. 

essary,  to  the  comfort  and  suitable  support  and  education  of  his 
ward.(w) 

18.  He  shall  EDUCATE  HIS  WARD,  and  it  is  made  the  duty  of  all 
ciyil  officers  to  give  information  to  the  county  court  of  any  neglect 
of  the  guardian  to  his  ward.(v) 

19.  THE  COURT  MAY  INTERFERE  IF  A  GUARDIAN  NEGLECTS  TO  ED- 
UCATE HIS  WARD.    When  there  is  not  money  of  the  ward  sufficient 
to  teach  him  to  read  and  write  and  the  elementary  rules  of  arithme- 
tic, and  the  guardian  fails  or  neglects  to  have  him  so  educated,  the 
court  shall  have  power  to  put  out  the  ward  to  any  other  person  for 
the  purpose  of  having  him  so  educated.(w) 

20.  To  INVEST  FUNDS.    It  shall  be  the  duty  of  the  guardian  to 
put  and  keep  his  ward's  money  at  interest,  upon  security,  to  be 
approved  by  the  court,  or  invest  the  same  in  United  States  bonds,  or 
other  United  States  interest-bearing  securities.     Personal  security 
may  be  taken  for  loans  not  exceeding  one  hundred  dollars.    Loans 
in  large  amounts  shall  be  upon  real  estate  security.    No  loan  shall 
be  made  for  a  longer  time  than  three  years,  nor  beyond  the  minority 
of  the  ward:  Provided,  the  same  may  be  extended  from  year  to 
year  without  the  approval  of  the  court.    The  guardian  shall  be 
chargeable  with  interest  upon  any  money  which  he  shall  wrongfully 
or  negligently  allow  to  remain  in  his  hands  uninvested  after  the 
same  might  have  been  in  vested.  (#) 


SECTION  IV. —  RESIGNATION  AND  REMOVAL. 

1.  The  court  may  permit  a  faithful  guardian  to  resign. 

2.  Petition  for  permission  to  resign. 

3.  Settlement  of  accounts,  surrender  of  estate,  and  acceptance  of  the  resigna- 

tion. 

4.  Guardians  may  be  removed  for  cause. 

5.  Petition  for  removal ;  its  form ;  petition  to  be  verified  and  filed. 

6.  The  summons ;  alias,  pluries. 

7.  Constructive  service. 

(1.)  Non-resident  guardian 

(2.)  Absent  guardian. 

(3.)  Concealed  guardian. 

(4.)  Residence  of  guardian  unknown. 

(«)  §  19,  )  (*)  §  22,  R.  S.   1874,  pp.  560,  561. 

(o)  §  20,  [  R.  S.  1874,  p.  560.  See  p.  119,  supra, 

(w)  §  21,  \ 


CH.  IV.]  ESTATES   OF   MINORS.  123 

Resignation  and  removal  of  guardians. 

8.  The  notice. 

9.  The  publication. 

10.  Jurisdiction  to  appoint  another  guardian,  and  to  enforce  orders  in  such 

matters. 

11.  The  marriage  of  a  female  ward  discharges  her  guardian  as  to  custody  and 

education,  but  not  as  to  property. 

12.  The  hearing. 

18.  The  decree  revoking  the  letters  of  guardianship. 

1.  THE  FAITHFUL  GUARDIAN  MAY  RESIGN.  When  it  appears 
proper,  the  court  may  permit  the  guardian  to  resign  his  trust  if  he 
first  settles  his  accounts  and  delivers  over  the  estate  as  by  the  court 
directed,  (y] 

Prior  to  the  passage  of  the  act  of  the  13th  of  April,  1849,  a  guard- 
ian could  not,  as  a  matter  of  right,  resign  his  trust.  Still,  when, 
previous  to  the  passage  of  said  act,  a  guardian  tendered  his  resigna- 
tion of  his  guardianship  to  the  probate  court,  which  resignation  was 
accepted  by  the  court  and  his  letters  of  guardianship  revoked,  and 
another  guardian  appointed  in  his  place :  Held,  that  the  validity  of 
such  revocation,  and  the  appointment  of  another  guardian,  could 
not  be  collaterally  called  in  question,  (z) 

Application  showing  the  reasons  for  asking  to  resign  must  be 
made  by  petition. 

2.  PETITION  FOR  PERMISSION  TO  RESIGN. 

STATE  OP  ILLINOIS,  )  In  the  County  Court  of          county. 

County,  f  *  To  the  term,  A.  D.  18    . 

In  the  matter  of  the  estate } 

of  C  D,  an  infant.  J 

Your  petitioner  shows  that,  by  the  order  and  appointment  of  this  court,  on 
the  day  of  ,  A.  D.  18  ,  he  was  constituted  guardian  of  C  D,  as  by  the 

records  and  files  of  this  court  will  more  fully  and  at  large  appear ;  that  your 
petitioner  is  about  to  go  to  the  State  of  New  York  to  reside  and  there  make 
his  home,  and  leave  the  State  of  Illinois ;  that  your  petitioner  is  prepared  to 
settle  his  accounts  and  deliver  over  the  said  estate  now  in  his  hands  as  thia 
court  shall  direct.  Whereupon,  your  petitioner  here  tenders  his  resignation 
of  the  office  of  guardian  as  aforesaid,  and  prays  that,  for  the  reasons  above 
assigned,  this  court  may  accept  said  resignation  and  discharge  your  petitioner 
from  said  trust.  And  your  petitioner  will  ever  pray,  etc.  A  B,  petitioner. 

Add  a  verification  and  file  the  same. 
(y)  §  39,  R.  S.  1874,  p.  5G2.  (z)  Young  v.  Lorain,  11  111.  624. 


ESTATES   OF   MINORS.  [CH.  IV. 


Resignation  and  removal  of  guardians. 


3.  SETTLEMENT  MUST  BE  MADE.    Upon  filing  this  petition,  all  par- 
ties interested,  especially  the  ward  and  his  relatives,  should  be  sum- 
moned, together  with  the  securities.      The  accounts  should    be 
examined  and  proved,  and  the  estate  turned  (jver  to  a  new  guardian. 
"When  all  is  done  to  the  satisfaction  of  the  court,  an  order  may  be 
entered  : 

ACCEPTANCE  OP  RESIGNATION. 

A  B,  who  was,  on  the        day  of  ,  A.  D.  18     ,  appointed  guardian  of  C 

D,  a  minor,  being  about  to  leave  the  State  of  Illinois,  to  make  his  home  and 
to  reside  elsewhere,  and  having  settled  his  accounts  and  delivered  over  all  the 
estate  that  has  come  to  his  hands,  and  tendered  his  resignation  as  such  guard- 
ian, ordered,  that  the  said  resignation  be  and  is  hereby  accepted,  and  the  said 
A  B  discharged  from  his  said  trust. 

4.  GUARDIANS  MAY  BE  REMOVED  FOR  CAUSE.    The  county  court 
may  remove  a  guardian  for  his  failure  to  give  bond  or  security,  or 
additional  or  counter  security,  when  required,  or  for  failure  to  make 
inventory,  or  to  account  and  make  settlement,  or  support  or  educate 
the  ward,  or  when  he  shall  have  become  insane,  or  have  removed  out 
of  the  State,  or  become  incapable  or  unsuitable  for  the  discharge  of 
his  duties,  or  for  failure  to  discharge  any  duty  required  of  him  by 
law  or  the  order  of  the  court,  or  for  other  good  cause,  (a) 

It  was  early  held  that  a  court  of  chancery  may  remove  all  guard- 
ians, whether  appointed  by  the  court  itself,  by  the  court  of  probate, 
by  testament,  or  even  by  express  act  of  the  legislature,  whenever  it 
is  satisfied  that  the  guardian  is  abusing  his  trust,  or  the  interests  of 
the  ward  require  it.  (b) 

GUARDIAN  TO  BE  SUMMONED.  But  before  removing  a  guardian, 
the  court  must  summon  him  to  show  cause  why  he  should  not  be 
removed  for  the  cause  alleged.  If  the  guardian  has  left  the  State, 
or  cannot  be  served  with  process,  he  may  be  notified  in  the  same 
manner  as  non-resident  defendants  in  chancery.  (c) 

5.  PETITION  FOR  REMOVAL  OF  GUARDIAN. 

STATE  OP  ILLINOIS,  )  In  the  County  Court  of  county. 

County.     I  term,  A.  D.  18    . 

To  Hon.  A  B,  Judge  of  said  court  : 

The  petition  of  E  F,  of  said  county,  respectfully  represents  and  shows  to 
your  honor  that  one  J  K,  of  said  county,  was,  on  the  day  of  ,  A.  D. 

(a)  8  37,  R.  S.  1874,  p.  562.  and  the  next  section  inaugurates  in 

(6)  Cowls  v.  Cowls,  3  Qilm.  435.     Sec.     such  matters  the  chanceiy  practice. 
37  seems  to  cover  the  whole  ground,        (c)  %  38,  R.  S.  1874,  p.  562. 


CH.  IV.]  ESTATES   OF   MINCES.  125 

Resignation  and  removal  of  guardians. 

18  ,  appointed  by  this  court  guardian  of  one  C  D,  a  minor  (then)  of  the  age 
of  six  years,  as  will  appear  by  reference  to  the  records  of  this  court ;  that 
since  his  said  appointment  as  such  guardian,  he  has  mismanaged  the  estate  of 
the  said  ward  by  cutting,  carrying  off,  selling  and  wasting  the  timber  upon  the 
land  of  the  said  minor,  to  the  great  injury  in  the  value  of  the  said  laud,  and 
has,  in  other  respects,  mismanaged  the  estate  of  his  said  ward  (or,  in  place  of 
this,  insert,  with  a  reasonable  degree  of  certainty,  the  particular  facts  in  the 
case,  on  account  of  which  it  is  desired  to  remove  the  guardian). 

And  your  petitioner  further  states  that  he  is  the  brother  of  the  said  ward. 

Wherefore  your  petitioner  prays  that,  on  the  final  hearing  hereof,  the  said 
guardian  be  removed,  and  his  letters  revoked ;  and  that  the  guardianship  of 
said  minor  be  committed  to  some  other  person,  and  that  said  J  K  be  cited  to 
appear  at  the  next  term  of  this  court,  and  show  cause,  if  any  he  has,  why  he 
should  not  be  so  removed. 

And  your  petitioner  will  ever  pray,  etc.  E  F. 

Dated  ,  18     . 

To  which  add  a  verification  of  the  facts  stated  in  the  petition  by 
the  oath  of  the  petitioner,  and  file  it.(d) 

Whenever  any  security  of  the  guardian  conceives  himself  in 
danger  of  suffering  by  the  mismanagement  of  the  guardian,  he 
may  petition  the  county  court  for  relief,  in  writing,  setting  forth 
the  cause  of  such  apprehension.  The  court  will  examine  the  peti- 
tion, and  if  it  adjudge  the  causes  therein  stated  and  set  forth  to  be 
sufficient,  if  true,  to  entitle  such  petitioner  to  relief,  the  guardian 
will  then  be  summoned  to  show  cause  against  the  petitioner.  On 
the  hearing,  the  court  may  revoke  the  letters  of  guardianship, 
release  such  security,  and  require  other  security,  or  dismiss  the  peti- 
tion. The  foregoing  form  of  petition,  with  slight  alteration,  may 
be  used  by  the  security. 

THE  SUMMONS  or  citation  should  be  served  upon  the  person  a  rea- 
sonable time  before  the  day  for  hearing  the  case,  that  he  may  have  a 
fair  opportunity  to  make  his  defense. 

6.  SUMMONS  TO  GUARDIAN. 

STATE  OF  ILLINOIS,  )  oc 
County.     ]  ss  • 

The  people  of  the  State  of  Illinois,  to  the  sheriff  of  said  county,  greeting  : 

Whereas,  it  has  been  represented  to  the  county  court  of  said  county,  by  the 
petition  of  C  D,  that  J  K,  guardian  of  E  F,  a  minor,  has  been  guilty  of  mis- 
managing and  wasting  the  estate  of  his  said  ward:  These  are,  therefore,  to 
command  you  to  summon  the  said  J  K  to  appear  before  the  county  court  of 
the  county  of  ,  at  the  next  term  thereof,  to  be  holden  at  the  court- 

(d)  See  p.  Ill,  supra. 


126  ESTATES   OF   MINORS.  [CH.   IV. 

Resignation  and  removal  of  guardians. 

house  in  said  county  on  the        day  of  ,  A.  D.  18     ,  and  show  cause,  if 

any  he  has,  why  he  should  not  be  removed  from  his  office  of  guardian  of  said 
E  F,  and  his  letters  of  guardianship  be  revoked.  And  you  are  to  make  return 
hereof  according  to  law. 

Witness  L  0,  clerk  of  the  county  court  of  county,  and  the 

[SEAL.]     seal  thereof,  at  his  office  in  ,  in  said  county,  this  day 

of  ,  18    .  L  0,  Clerk  county  court. 

On  the  day  stated  in  the  summons,  the  court  will  proceed  to  hear 
the  evidence  in  support  of  the  allegations  in  the  petition,  and  such 
proof  as  the  guardian  may  offer  to  acquit  himself  thereof.  If,  upon 
such  hearing,  the  judge  shall  decide  from  the  evidence  that  there 
exist  good  and  sufficient  reason,  he  -will  cause  the  same  to  be 
entered  upon  the  record,  and  an  order  removing  the  guardian,  and 
also  an  order  that  he  deliver  up  to  his  successor,  to  be  appointed,  all 
goods,  chattels,  moneys,  title  papers  or  other  effects  belonging  to  the 
ward,  or  which  may  be  in  his  possession  or  under  his  control. 

It  is  the  duty  of  all  civil  county  officers  to  give  information  to 
the  court  of  the  neglect  of  the  guardian  to  educate  his  ward. 
Others  interested  in  the  welfare  of  the  minors  are  not  denied  the 
privilege  of  doing  this.  If  the  guardian  or  other  party  be  dissatis- 
fied with  the  decision  of  the  court,  either  may  appeal  to  the  circuit 
court  of  the  county  by  entering  into  bond  the  same  as  in  appeals 
from  decisions  of  justices  of  the  peace. 

Guardians  may  be  removed  upon  complaint  of  any  person,  in 
behalf  of  the  minor,  made  to  the  circuit  court  of  the  county  where 
such  guardian  may  reside,  on  proof  of  malconduct  or  misbehavior 
in  the  performance  of  their  duties.  The  same  form  before  given 
may,  with  proper  alterations,  be  used  in  the  circuit  court. 

Upon  the  removal  of  the  guardian,  if  the  minor  be  above  four- 
teen years  of  age,  he  may  choose  a  guardian  in  place  of  the  one 
removed.  If  he  should  neglect  or  refuse  to  do  it,  the  court  may 
unquestionably  appoint  one  for  him  the  same  as  if  he  were  under 
fourteen  years  of  age. 

7.  CONSTRUCTIVE  SERVICE.  Whenever  any  complainant  or  his 
attorney  shall  file  in  the  office  of  the  clerk  of  the  court  in  which 
his  suit  is  pending,  an  affidavit  showing  that  any  defendant  resides 
or  hath  gone  out  of  this  State,  or  on  due  inquiry  cannot  be  found, 
or  is  concealed  within  this  State  so  that  process  cannot  be  served 
upon  him,  and  stating  the  place  of  residence  of  such  defendant,  if 
known,  or  that,  upon  diligent  inquiry,  his  place  of  residence  cannot 


CH.  IV.]  ESTATES   OF   MINORS.  127 

Resignation  and  removal  of  guardians. 

be  ascertained,  the  clerk  shall  cause  publication  to  be  made  in  some 
newspaper  printed  in  his  county,  and  if  there  be  no  newspaper  pub- 
lished in  his  county,  then  in  the  nearest  newspaper  published  in  this 
State,  containing  notice  of  the  pendency  of  such  suit,  the  names  of 
the  parties  thereto,  the  title  of  the  court,  and  the  time  and  place  of 
the  return  of  summons  in  the  case;  and  he  shall  also,  within  ten 
days  of  the  first  publication  of  such  notice,  send  a  copy  thereof  by 
mail,  addressed  to  such  defendant  whose  place  of  residence  is  stated 
in  such  affidavit.  The  certificate  of  the  clerk  that  he  has  sent  such 
notice,  in  pursuance  of  this  section,  shall  be  evidence.(e) 

FOUR  SUCCESSIVE  WEEKS;  FORTY  DAYS.  The  notice  required 
in  the  preceding  section  may  be  given  at  any  time  after  the  com- 
mencement of  the  suit,  and  shall  be  published  at  least  once  in 
each  week  for  four  successive  weeks,  and  no  default  or  proceeding 
shall  be  taken  against  any  defendant  not  served  with  summons,  or  a 
copy  of  the  bill,  and  not  appearing,  unless  forty  days  shall  intervene 
between  the  first  publication  as  aforesaid,  and  the  first  day  of  the 
term  at  which  such  default  or  proceeding  is  proposed  to  be  taken.(/) 

The  above  provisions  of  the  statute  regulating  the  publication  of 
notices  in  chancery  are,  perhaps,  relevant  to  proceedings  in  probate 
courts  or  county  courts  sitting  for  the  transaction  of  probate  busi- 
ness, in  so  far  as  their  equitable  jurisdiction  is  called  into  action. 
It  is  true,  however,  that  in  the  ordinary  affairs  of  probate,  the 
statute  of  1874,  in  relation  to  notices,  recited  hereinbefore,  has 
more  special  reference,  the  majority  of  cases  in  which  notice  is 
required  to  be  given  generally  falling  within  the  class  of  notices 
required,  by  law,  to  be  published  in  which  the  number  of  publica- 
tions is  not  specified.  In  matters  of  final  accounting  and  resigna- 
tion of  executor  or  administrator,  the  probate  court  of  Cook  county 
has  provided  specific  rules. (g) 

PROCEEDINGS  AT  SUBSEQUENT  TERM.  If,  for  want  of  due  publi- 
cation or  service,  in  time,  the  cause  shall  be  continued,  then  the 
same  proceedings  may  be  had  at  a  subsequent  term  of  the  court  as 
might  have  been  had  at  the  term  to  which  said  summons  is  return- 
able, (h) 

(e)  §  12,  Cothran's  Stats.,  185.  (7t)  §§  12, 13,  Cothran's  Stats,,  185, 

(/)  §  13>  Cothran's  Stats.,  186.  186;  Hill's  Chan.  Pr.  18,  19. 

(g)  Post,  rules  8,  9. 


128  ESTATES   OF   MINORS.  [CH.  IV. 

Resignation  and  removal  of  guardians. 

ALIAS,  PLURIES,  ETC.  If  in  any  suit  in  chancery  the  process 
shall  not  be  returned  executed  on  the  return  day  thereof,  the  clerk, 
if  required,  shall  issue  an  alias,  pluries  or  other  process,  without  an 
order  of  the  court  therefor,  (i) 

As  between  the  parties  to  the  suit  and  their  privies,  the  summons 
or  the  affidavit,  and  advertisement  with  certificate  of  publisher 
must  be  in  the  record- to  confer  jurisdiction  over  parties.  (/)  By 
the  statute  of  1845  the  giving  of  notice  or  the  making  of  construc- 
tive service  materially  differed  from  the  present  process.  Under 
the  then  statute  there  was  no  provision  made  for  mailing  copy  of 
the  publication  to  the  party  to  be  affected  by  it.  It  was,  however, 
provided  that  the  proceeding  to  bring  the  party  in  by  publication 
should  "  not  dispense  with  the  usual  exertion  on  the  part  of  the 
sheriff,  to  serve  the  summons."  This  clause  of  the  law,  the  supreme 
court  so  construed  that  the  procedure  could  not  be  resorted  to  un- 
til a  return  of  non  est  inventus  had  been  made  by  the  sheriff.  To 
remedy  the  necessary  delay,  as  well  as  to  avoid  the  useless  perform- 
ance of  searching  for  parties  sworn  to  be  non-resident,  a  cui'ative 
act  was  passed  February  12, 1857.  This  in  its  turn  has  given  place 
to  the  imposition  of  the  duty,  on  the  clerk  of  the  court,  of  attempt- 
ing to  notify  the  non-resident,  unless  it  be  sworn  that  his  place  of 
abode  is  not  known.(&) 

SERVICE  BY  PUBLICATION  rests  on  (1)  the  affidavit,  (2)  the  notice, 
(3)  the  certificate  of  the  printer  or  publisher  (I),  and  (4)  certificate 
of  mailing.  Such  enactments  are  strictly  construed. 

IT  SEEMS  that  a  defective  notice  or  certificate  may  be  cured  by 
the  recitals  of  the  decree,  if  not  by  the  presumption  omnia  rite  esse 
acta,  etc.,  which  obtains  in  favor  of  courts  of  general  jurisdiction, 
especially  in  cases  where  the  decrees  and  judgments  are  called  col- 
laterally in  question,  (m)  But  the  affidavit,  being  the  foundation  of 
this  special  proceeding,  has  always  received  most  critical  attention 
in  the  courts,  (ri) 

(i)  §  11,  page  19,  Hill's  Ch.  Pr.  fying  Randall  v.  Songer,  16  id.  27  ; 

(j)  Compare  Randall  v.  Songer,  16  and  varien  v .  Edmonson,  5  Gilm .  272 . 

111.  28  with  Reddick  v.  Bank,  27  id.  (m)  Reddick  v.  Bank,  27  111.  148; 

148;  Smith  v.  Trimble,  id.  153.  Tibbs  v.  Allen,  id.  125. 

(k)  Smith  v.  Trimble,  27  111.  153;  (n)  Tibbs  v.  Allen,  27  111.  125; 

McDanielv.  Correll,  19  id.  227.  Jones'  Forms,  281. 

(I)  Tibbs  v.  Allen, W  111.  125;  modi- 


CH.   IV.]  ESTATES   OF   MINORS.  129 

Resignation  and  removal  of  guardians. 

A  CAREFUL  EXAMINATION  of  the  authorities  shows  the  requisites 
of  such  affidavits  to  be,  (1)  A  suit  pending  when  they  are  made; 
(2)  Positive  terms,  not  on  information  or  belief;  (3)  They  should 
be  correctly  entitled  in  the  proper  court;  (4)  They  should  contain 
facts,  not  conclusions  of  law;  (5)  They  must  be  made  by  the  party 
himself,  or  his  attorney,  (o) 

Affidavit  of  the  non-residence  of  a  guardian  may  be  made  after 
the  following  precedent: 


(1.)  NON-RESIDENT  GUARDIAN. 
(Title  of  matter.) 

STATE  OP  ILLINOIS,  ) 

County,  y  ** 

A  B,  being  duly  sworn,  upon  his  oath,  says,  that  he  is  the  petitioner,  and  that 
E  F,  guardian  of  C  D,  herein  named  in  the  above-entitled  matter,  resides  at 
,  in  the  county  of  ,  in  the  State  of  ,  and  further 

deponent  saith  not. 

(Jurat.)  A  B. 

The  court  as  well  as  the  clerk  can,  from  such  an  affidavit  and  the 
facts  stated  in  it,  draw  the  legal  conclusion  that  B  F  resides  out  of 
this  State,  and  determine  the  propriety  of  publication. 

In  case  of  filing  such  an  affidavit,  no  action  on  the  part  of  the 
sheriff,  of  course,  could  reach  E  F,  and  notice  of  publication  may 
now  issue  at  once  without  a  return,  wow  est  inventus.(p)  The  inter- 
vention of  the  sheriff  being  no  longer  essential  to  jurisdiction  in 
the  court. 

But  in  the  four  other  cases:  (1)  Absence  of  a  resident  defendant, 
or  (2),  his  concealment,  or  (3),  where  his  residence  is  unknown  or 
he  cannot  be  found,  and  (4),  where  his  name  is  unknown,  or  he  is 
unknown,  such  a  return  was  held  essential  to  the  validity  of  the 
notice  of  publication.^)  The  following  forms  are  suggested: 

(o)  24  111.  281;  1  Daniel's  Ch.  Pr.,  ch.        (p)  Laws  of  1874,  199,  8  8. 
22,  §   10;  8  Paige,  414;  Campbell  v.        (q)  19  111.  227;  27  id.  153. 
Morrison,  7  Paige,  157;  41   111.,  49;  3 
Qreenleaf's  Evid.,  pp.  336,  342. 


130  ESTATES   OF   MINORS.  [OH.  IV. 

Resignation  and  removal  of  guardians. 

(2.)  ABSENT  GUARDIAN. 

(Title  of  cause,  venue,  etc.) 

A  B,  being  duly  sworn,  says,  that  he  is  the  petitioner ;  that  E  F,  guardian  in 
this  matter  of  C  D,  who  resided  recently  (or  whose  usual  place  of  abode  is)  at 
,  in  the  county  of  ,  in  this  State,  has  departed  from  thence  and  gone 

(with  all  his  family)  (on  a  journey  to  Europe)  (or  to  the  State  of  )  for  the 

time  being  (or  is  now  out  of  this  State,  and  that  upon  diligent  inquiry  his 
place  of  residence  cannot  be  ascertained),  and  further  deponent  saith  not. 

(Jurat.)  A  B. 

From  such  facts,  coupled  with  the  sheriff's  return  on  file,  it 
appears  that  ordinary  service  cannot  be  made  on  E  F,  although  a 
resident  guardian,  on  account  of  temporary  absence. 

(3.)  CONCEALED  GUARDIAN. 

(Title  of  proceeding.) 

( Venue.) 

A  B,  being  duly  sworn,  says,  that  he  is  the  petitioner  in  this  matter ;  that  E 
F,  guardian  of  C  D  herein,  at  the  time  of  issuing  of  the  summons  herein, 
resided  at  ,  in  the  county  of  ,  in  this  State,  but  on  learning  that  C 

D,  the  sheriff  of  said  county,  had  such  a  summons,  and  was  looking  for  said 
E  F,  he,  the  said  E  F,  concealed  himself  within  this  State,  and  so  continues  to 
avoid  the  service  of  process  herein,  and  that  upon  diligent  inquiry  his  place 
of  residence  cannot  be  ascertained,  and  further  deponent  saith  not. 

(Jurat.)  A  B. 

(4.)  RESIDENCE  OF  GUARDIAN  UNKNOWN. 

Another  case  is  provided  for,  to  wit:  where  a  guardian  on  due 
inquiry  cannot  be  found,  and  where  his  residence  is  unknown  and 
cannot,  upon  diligent  inquiry,  be  ascertained.  In  this  case  also,  the 
summons  should  be  issued  and  returned  "upon  diligent  search  and 
inquiry  made  and  had,  I  cannot  find  the  within-named  guardian  E 
F  in  my  county,  nor  can  I  learn  where  he  is,"  etc. 

Upon  this  return  and  an  affidavit  as  follows : 

(Title,  venue,  etc.) 

A  B,  being  duly  sworn,  says,  that  he  is  the  petitioner  in  the  above-entitled 
proceeding,  and  that  the  residence  of  the  guardian  E  F  herein  is  unknown, 
and  cannot,  upon  diligent  search  and  inquiry,  which  have  been  made,  be  ascer- 
tained, and  that  the  said  E  F  cannot,  on  due  inquiry,  be  found,  and  further 
deponent  saith  not. 

(Jurat.)  A  B. 

The  publication  notice  will  issue. 

But  few  decisions  have  been  made  on  the  requisites  of  such  affida- 


CH.  IV.]  ESTATES   OF    MINORS,  lol 


Resignation  and  removal  of  guardians. 


vits.  The  importance  of  their  sufficiency  is  forcibly  stated  in 
Campbell  v.  McCahan,  41  111.  49.(s) 

The  notice  should  be  published  immediately  on  filing  the  affi- 
davit, and  the  affidavit  must  be  filed  as  soon  as  it  is  made.  Unrea- 
sonable delay  in  either  case  would  prove  fatal  to  the  jurisdiction 
over  the  defendant.(^) 

8.  THE  NOTICE.  The  form  of  a  chancery  notice,  as  used 
generally  throughout  the  State,  in  cases  of  non-resident  defendants, 
may  be  found  at  page  657,  Hill's  Chancery  Practice,  and  in  Jones' 
Forms,  No.  472,  page  282.  It  may  be  varied  to  meet  the  exigencies 
of  any  cause. 

(1.)  PUBLICATION"  NOTICE.  Where  defendants  have  not  been 
served  with  process,  the  clerk  may  make  publication  of  notice  to 
them  without  an  order  of  the  court  under  the  statute,  and  it  will 
be  sufficient(w) 

(2.)  "Where  one  of  several  defendants  to  a  bill  in  chancery  is  a 
non-resident,  and  the  notice  by  publication  is  insufficient  to  charge 
him,  and  the  other  defendants  are  personally  served  with  notice,  the 
latter  cannot  raise  objections  to  the  insufficiency  of  the  notice  by 
publication,  (v) 

KOTICB  TO  GUARDIAN. 

STATE  OP  ILLINOIS,  j  In  the  County  Court  of          county. 

county,  j  term,  18    . 

In  the  matter  of  the ) 
guardianship  of  C  D.    ) 

Affidavit  of  the  non-residence  of  the  guardian  above  named,  having  been 
filed  in  the  office  of  the  clerk  of  said  county  court  of  county,  notice  is 

hereby  given  to  the  said  guardian  that  one  E  H  filed  his  petition  in  said  court, 
on  the  day  of  ,  18  ,  and  that  a  summons  thereupon  issued  out 

of  said  court  against  said  guardian  ,  returnable  on  the  Monday  of 

next  (18  ),  as  is  by  law  required. 

Now,  unless  you,  the  said  C  D,  shall  personally  be  and  appear  before  said 
county  court  of  county,  on  the  first  day  of  the  next  term  thereof,  to  be 

holden  in  in  said  county,  on  the  third  Monday  of  ,  18  ,  and  (w) 

show  cause  against  said  petition,  why  you  should  not  be  removed  from  your 
trust  as  guardian  of  the  said  C  D,  and  answer  such  other  matters  as  are  in  said 
petition  set  forth,  the  same,  and  the  matters  and  things  therein  charged  and 

(*)  See  Hill's  Ch.  Pr.  18.  Laws  1827,  p.  48  ;  1833,  p.  63  ;  R.  S.  47, 

(t)  Campbell  v.  McCahan,  41  111.  45.  P.  77  and  78,  S.  81,  Gross,  6.    See  p. 

(u)  Ayres  v.  Lusk,  1  Scam.  536.  51,  supra, 
(v)  Fergut  v.  Tinkham,  38  111.  407 ;        (w)  See  page  133,  supra. 


132  ESTATES   OF   MINORS.  [CH.  IV. 

Resignation  and  removal  of  guardians. 

stated,  will  be  taken  as  confessed,  and    a    decree    entered    against    you,  ac- 
cording to  the  prayer  of  said  petition. 

,  Complainant's  solicitor.  ,  Clerk. 

9.  DAILY  PAPER.     If  published  in  a  daily  paper,  publication  on 
Sunday  is   forbidden  by  the  policy  of  the  law  and  prohibited   by 
statute,  and  no  greater  amount  is  chargeable  for  costs  for  publica- 
tion fee  than  would  be  sufficient  to  publish  the  same  notice  in  a 
weekly  paper. 

In  an  adversary  proceeding  in  the 'courts,  the  publication  notices 
and  all  matters  pertaining  to  them  being  usually  directory,  no  ques- 
tions collaterally  can  be  raised  relative  thereto,  but  it  is  otherwise  in 
special  proceedings.  In  computation  of  time,  Sunday  is  dies  non 
juridicus.  (x)  In  computing  the  time  of  the  publication,  the  day 
of  the  publication  should  be  excluded,  and  the  day  of  the  commence- 
ment of  the  term  of  the  court  included.  When  certified  by  the 
publisher  or  his  agent  and  a  copy  of  the  notice  filed  with  the  certi- 
ficate, these  become  a  part  of  the  record,  (y)  Proof  of  publication 
may  be  made  otherwise,  however,  than  by  the  publisher. 

In  collateral  proceedings  the  notice  cannot  be  impeached.  A  cer- 
tificate, declaring  that  an  advertisement  was  published  "  for  four 
successive  weeks,  the  first  publication  having  been  made  on  the  8th 
day  of  March,  1850,"  will,  in  a  chancery  proceeding  against  an  un- 
known person,  confer  jurisdiction  on  the  court,  although  the  certi- 
ficate proceeds  to  state,  "and  the  last  on  the  26th  of  April,  18.50," 
the  inference  being,  that  the  certificate  was  published  eight  weeks  ; 
and,  in  a  collateral  proceeding,  the  presumption  will  be,  that  the 
court  had  other  evidence  that  publication  was  duly  made,  (z) 

10.  ANOTHER  GUARDIAN  APPOINTED.  Upon  the  removal,  resigna- 
tion or  death -of  a  guardian  another  may  be  appointed,  who  shall 
give  bond  and  security  and  perform  the  duties  of  the  office.     And 
the  court  shall  have  power  to  compel  the  guardian  so  removed  or 
resigned,  or  the  executor  or  administrator  of  a  deceased  guardian, 
or  the  conservator  of  an  insane  person,  or  other  person,  to  deliver 
up  to  such  successor  all  the  goods,  chattels,  moneys,  title  papers, 
and  other  effects  in  his  custody  or  control,  belonging  to  such  minor  ; 
and  upon  failure  to  so  deliver  the  same,  to  commit  the  person  offend- 
ing to  jail  until  he  shall  comply  with  the  order  of  the  court.(a) 

(x)  Scammon  v.  Chicago,  40  111.  146 ;  v.    Wiltberger,  id.    385  ;    Botsford   v. 

12  id.  358.  0'  Conner,  57  id.  72. 

(y)  Varien  v.  Edmonton.  5  GUm.  272;  (z)  Pile  v.  McSratney,  15  111.  314. 

Harper  v.  Ely,  56  111.  179  ;    Tompkins  (a)  %  40,  R.  S.  1874,  p.  562. 


CH.  IV.]  ESTATES   OF   MINORS.  133 

Resignation  and  removal  of  guardians. 

11.  THE  MAREIAGE  OF  A  FEMALE  WARD  shall  discharge  her  guar- 
dian from  all  right  to  her  custody  and  education,  but  not  to  her 
property.  (5) 

12.  THE  HEARING.     On  filing  the  petition  for  the  removal  of  a 
guardian  for  cause,  as  we  have  seen,  process  issues.    The  time  for 
hearing  should  be  fixed  and  continued  from  time  to  time  until  the 
guardian  is  either  actually  or  constructively  served.     No  course  of 
procedure  is  indicated,  but  the  Chancery  Practice  in  such  cases 
affords  ample  precedents,  if  we  are  to  consider  the  petition  in  the 
nature  of  a  bill  in  chancery. 

The  decree  should  recite  the  facts  upon  which  the  same  is  made,  (c) 

13.  DECREE  OF  REMOVAL  OF  GUARDIAN. 

The  petition  of  A  B  coming  on  this  day  to  be  heard,  and  it  appearing  that 
C  D,  the  guardian  of  E  F  aforesaid,  has  filed  his  answer  herein,  denying  the 
facts  stated  in  said  petition,  and  it  appearing  to  the  court  from  the  testimony 
that  C  D  has  mismanaged  said  estate  as  stated  in  said  petition,  and  that  all  the 
facts  stated  in  said  petition  are  true  and  have  been  fully  proved  to  the  satisfac- 
tion of  this  court,  and  after  argument  by  the  respective  counsel  for  said  peti- 
tioner and  said  guardian,  it  is  nowhere  ordered,  adjudged  and  decreed, 
that  said  guardian's  accounts  be  forthwith  closed ;  that  all  the  estate  of  the 
said  E  F,  which  has  come  to  the  hands  of  the  said  C  D,  as  such  guardian,  now 
remaining  undisposed  of,  be  delivered  over  to  another  guardian  to  be  by  this 
court  appointed,  and  that  the  letters  of  guardianship  heretofore  issued  to  the 
said  C  D  be  and  hereby  are  revoked  ;  and  that  the  said  C  D  attend  before  this 
court  from  day  to  day  until  this  decree  and  the  several  orders  herein  are  fully 
complied  with. 

Dated  ,  A.  D.  18     . 

Another  guardian  is  then  to  be  nominated  and  appointed  as  before 
and  the  estate  turned  over  to  him.  (d) 

For  further  delineation  of  the  law  of  guardian  and  ward,  and  the 
jurisdiction  and  practice,  the  reader  is  referred  to  subsequent  chapters 
and  to  Hill's  Chancery  Practice,  "  Infants. "  • 

(1.)  GUARDIAN  AD  LITEM ;  DECISIONS.  An  answer  of  a  guardian 
ad  litem,  if  it  admit  the  truth  of  the  charges  in  the  complainant's 
bill;  cannot  affect  the  infant's  rights ;  but,  with  respect  to  him,  all 
allegations  must  be  proved  with  the  same  strictness  as  if  the  answer 
had  interposed  a  direct  and  positive  denial  of  their  truth,  (e) 

(6)  g  41.  R.  S.  1874,  p.  562.  (d)  See  page  111,  supra. 

(c)  See  Hill's  Chan.  Pr.,  Bill  and  De-  (e)  McGlay,  Adm'r,  v.  Norris,  4  Gilm. 

cree,  Answer,  Demurrer,  Plea,  etc.,  etc.  370  ;  Chaffin  v.  Heirs  of  Kimball,  23 

But  see  Bressler  v.  McCune.  56  111.  565.  111.  36. 


134  ESTATES   OF   MINORS.  [CH.  IV. 

Resignation  and  removal  of  guardians. 

(2.)  WAIVER.  A  guardian  ad  litem  cannot  waive  any  of  the  rights 
of  the  defendant  whom  he  represents,  and  when  incompetent  and 
illegal  evidence  is  introduced  without  objection  by  the  guardian,  the 
court  is  bound  to  notice  and  exclude  such  evidence.  (/) 

(3.)  Upon  an  application  to  sell  the  real  estate  of  a  decedent  for 
the  payment  of  debts,  infant  heirs,  who  have  not  guardians  appear- 
ing for  them,  must  be  represented  by  guardians  ad  litem.  (g) 

(4.)  It  is  not  necessary  that  there  should  be  a  guardian,  or  proclmn 
ami,  for  a  minor  at  the  time  of  suing  out  process.  If  the  rule  were 
otherwise,  it  should  be  taken  advantage  of  by  plea  in  abatement,  or 
by  motion  to  quash,  (h) 

(5.)  It  is  the  duty  of  the  court  to  appoint  a  guardian  ad  litem  to 
protect  the  interests  of  infant  suitors,  (i) 

(6.)  The  failure  of  a  guardian  ad  litem  to  answer  for  the  infant 
does  not  take  away  the  jurisdiction  of  the  court  over  the  infant.  (/) 

(7.)  Where  infants  are  not  in  court,  owing  to  the  fact  that  notice 
of  publication  is  void,  the  appointment  of  a  guardian  ad  litem  is 
void.  (&) 

(8.)  The  appointment  of,  for  minor  defendants,  not  naming  them, 
is  inoperative,  where  the  record  likewise  fails  to  show  that  any  of 
defendants  are  minors.  (I) 

(9.)  APPOINTMENT  OF.  As  to,  by  the  court,  sua  sponte;  and 
whether  and  when  on  plaintiff's  motion;  need  not  be  related  to  the 
infants.  Executor  not  necessarily  the  guardian,  (m) 

(10.)  Answer  not  binding  on  infants,  (m) 

(11.)  Court  should  require  answer  of,  before  entering  final  de- 
cree, (m) 

(12.)  To  vigorously  defend  the  interest  of  the  infants,  (m) 

(13.)  A  guardian  ad  litem  must  be  appointed  for  infant  defend- 
ants, or  the  proceedings  against  them  will  be  erroneous,  (ri) 

(14.)  Jurisdiction  is  not  conferred  by  answer  of  guardian  ad  litem, 
where  there  has  been  no  service,  (o) 

(15.)  The  appointment  of  "  the  clerk  of  the  court "  without  nam- 
ing him  is  sufficient,  (p) 

(/)  Cartwright  v.  Wise,  14  HI.  417.  (I)    Sullivan  v.  Sullivan,  42  111.  315. 

(g)  Herdman  v.  Short,  18  111.  59.  (m)  Rhoads  v.  Rhoads,  43  111.  239. 

(A)  Stumps  v.  Kdly,  22  111.  140.  (n)  Hall  v.  Davis,  44  111.  494  ;   Quig- 

(t)  Loyd  v.  Malone,  23  111.  43.  ley  v.  Roberts,  id.  503. 
(j)  Ooudy  v.  Hall,  36  111.  313.  (o)  Clark  v.  Thompson,  47  111.  25. 

(k)  McDermaid  v.  Russell,  41  111.  490.        ( p)  Hess  v.  Voss,  52  111.  472. 


CH.    Y.J    ESTATES  AND   PERSONS   OF  THE   INCAPACITATED.  135 

The  insane,  etc. ;  decisions. 


CHAPTER  V. 


SECTION     I.  The  insane,  etc. ;  decisions. 

II.  Appointment  of  conservators  —  their  powers  and  duties — restor- 
ation and  removal. 
III.  Commitment  and  detention  of  such  persons. 


SECTION  I.  —  THE  INSANE,  ETC.;   DECISIONS. 

1.  Evidence  aa  to  insanity,  and  presumptions  as  to  sanity,  onus  probandi. 

2.  Lucid  intervals,  contracts,  etc. 

3.  Questions  relative  to  sanity  and  insanity,  proper  issues  for  a  jury. 

4.  Facts  indicating  a  disposing  mind  and  eo  converse. 

5.  Mere  mental  weakness  insufficient  to  authorize  equity  to  interfere  in  matters 

of  contract. 

6.  Drunkenness  producing  inability  or  insanity,  however,  is  sufficient. 

7.  Idiots  and  lunatics  ;  conservators  ;  their  appointment  and  discharge. 

8.  Insanity  as  a  defense  against  a  criminal  charge. 

1.  It  cannot  be  presumed,  against  proof,  that  a  person  was  insane 
merely  because  his  mother  had  been  so.(a)     The  law  presumes  every 
man  to  be  sane,  but  when  insanity  is  once  proved  to  have  existed, 
the  law  presumes  it  still  to  continue. (b)     In  questions  of  insanity, 
the  affirmative  testimony  of  those  best  acquainted  with  the  person 
alleged  to  be  insane  should  outweigh  the  testimony  of  those  who 
merely  testify,  from  interviews  at  or  about  the  time  of  the  act 
sought  to  be  avoided  for  insanity,  that  they  saw  nothing  indicating 
an  insane  mind.(c)     In  cases  involving  questions  of  insanity,  the 
presumption  is  in  favor  of  sanity,  and  the  onus  of  proof  is  on  the 
party  seeking  to  impeach  an  instrument  executed  by  a  person  of 
competent  age  and  under  no  legal  disabilities.(^) 

2.  A  contract,  entered  into  during  the  LUCID  INTERVALS  of  one 
who  is  a  lunatic,  is  valid. (e)    A  deed  executed  several  years  before 
the  maker  was,  by  inquest,  found  insane  has  the  legal  presumption 

(a)  Snow  v.  Benton,  28  111.  306.  (<f)  Myatt  v.  Walker,  44  111.  485. 

(6)  Menkim  v.  Lightner,  18  111.  282.          (e)  Lilly  v.  Waggoner,  27  111.  395. 
(e)  Emery  r.  Hoyt,  46  111.  258. 


136  ESTATES   AND   PERSONS   OF  THE  INCAPACITATED.       [OH.  V. 

The  insane,  etc. ;  decisions. 

of  validity  in  its  favor.(e)  The  evidence  showing  the  insanity  of  a 
party  at  the  time  of  the  execution  of  a  deed  must  preponderate,  or 
the  legal  presumption  in  favor  of  sanity  will  sustain  the  act.(e)  In 
an  action  upon  a  promissory  note,  the  defendant,  who  alleges  insan- 
ity when  it  was  made,  is  not  bound  to  overcome  or  pay  any  regard 
to  a  finding  of  an  inquest  in  the  county  court  that  he  was  sane  on  a 
day  prior  to  that  on  which  the  note  was  made.(/)  When  insanity 
is  established  in  the  maker  of  a  contract,  at  times  both  before  and 
after  its  execution,  as  a  defense  to  an  action  to  enforce  the  contract, 
the  burden  is  on  the  plaintiff  to  show  that  it  was  made  in  a  lucid 
interval.  The  fact  that  the  consideration  of  the  note  was  adequate 
would  not  of  itself  justify  the  inference  that  the  maker  was  sane 
when  he  made  it.(/) 

3.  Formerly  the  intervention  of   a   jury  was  not   an   absolute 
necessity  in  dealing  with  the  insane.(^)     It  is  otherwise  now. 

4.  HOMICIDE,  FOLLOWED  BY  SUICIDE,  and  a  disposition  of  prop- 
erty entirely  at  variance  with  long-declared  intentions,  and  the  exhi- 
bition of  unnatural  malice  toward  a  child,  are  not  of  themselves 
sufficient  to  raise  a  presumption  of  insanity,  and  the  want  of  a  dis- 
posing mind.  (A) 

The  rule  which  permits  EVIDENCE  AS  TO  THE  PECUNIARY  CONDI- 
TION, means  and  ability  of  the  beneficiaries  of  a  will,  and  of  those 
who  might  be  benefited  by  overthrowing  it,  with  a  view  of  deter- 
mining whether  the  testator  appreciates  his  relation  to  them,  and 
exhibits  a  capable  and  disposing  mind,  has  no  application  to  the  case 
of  a  gift  accompanied  with  delivery,  (h) 

5.  MERE  MENTAL  WEAKNESS  will  not  authorize  a  court  of  equity 
to  set  aside  an  executed  contract  unless  such  weakness  amounts  to 
inability  to  comprehend  the  contract,  and  is  accompanied  by  evi- 
dence of  imposition  or  undue  influence,  (i) 

6.  The  law  will  protect  a  party  from  the  effects  of  his  own  acts 
done  in  a  state  of  insanity,  even  though  the  INSANITY  is  CAUSED  BY 
DKUNKENNESS.(y)     Evidence  of  a  sober  interval,  after  a  long  period 
of  continued  drunkenness  and  craziness,  does  not  show  that  state  of 
rnind  necessary  to  the  validity  of  a  contract.(y) 

(e)  Lilly  v.  Waggoner,  27  111.  395.  (h)  Crum,  adm'r,  v.  Thornly,  47  111. 

(/)  Emery  v.  Hoyt,  46  111.  258.  192. 

07)  Myatt  v.  Walker,  44  111.  485.  (i)  Miller  v.  Craig,  36  111.  109. 

(j)  Menkins  v.  Lightner,  18  111.  282 


€H.  V.J       ESTATES   AND    PEKSONS   OF  THE   INCAPACITATED.  137 

The  insane,  etc. ;  decisions. 

7.  IDIOTS  AND  LUNATICS.    Under  the  provisions  of  the  Kevised 
Statutes,  concerning  idiots  and  lunatics,  application  may  be  made 
by  one  who  has  been  declared  a  lunatic,  and  for  whom  a  conservator 
has  been  appointed,  to  the  same  court  where  the  former  proceedings 
took  place  for  the  discharge  of  the  conservator,  and  the  restoration 
of  the  property  in  his  hands.  (&)     "Where  a  conservator  to  a  lunatic 
is  sought  to  be  appointed  under  the  statute,  the  lunatic  must  have 
reasonable  notice,  or  the  inquisition  will  be  set  aside. (I) 

8.  INSANITY  AS  A  DEFENSE.    The  presumption  is  that  all  men 
are  of  sufficient  capacity  to  be  responsible  for  crime;  therefore,  the 
prisoner  must  establish  his  insanity.(m)     It  need  not,  however,  be 
established  beyond  a  reasonable  doubt;  it  is  enough  if  the  jury  be 
reasonably  satisfied  thereof  by  the  weight  or  preponderance  of  the 
evidence,  (w)     If  the  accused  had,  at  the  time  of  the  offense,  capacity 
and  reason  sufficient  to  enable  him  to  distinguish  between  right  and 
wrong,  and  understand  the  nature  of  the  act,  and  his  relation  to  the 
party  injured,  the  defense  of  insanity  is  not  made  out.  (m)     The 
prosecution  is  not  bound  to  prove  the  sanity  of  a  defendant  in  a 
criminal  case  ;  but  if  evidence  of  insanity  is  introduced  by  the  ac- 
cused, and  there  is  reasonable  doubt  of  his  sanity,  he  is  entitled  to 
the  benefit  of  the  doubt.(w)     When  a  defendant,  who  is  being  tried 
upon  a  criminal  charge,  sets  up  insanity  as  an  excuse  for  the  act, 
he  does  not  thereby  assume  the  burden  of  the  proof  upon  that  ques- 
tion.    Such  a  defense  is  only  a  denial  of  one  of  the  essential  allega- 
tions against  him.(o)     And  in  sustaining  such  a  defense  it  is  not 
necessary  that  the  insanity  of  the  accused  be  established,  even  by  a 
preponderance  of  proof ;  but  if,  upon  the  whole  evidence,  the  jury 
entertain  a  reasonable  doubt  of  his  insanity,  they  must  acquit.(o) 
Where  a  party  who  is  upon  trial  on  an  indictment  for  murder  inter- 
poses the  defense  of  insanity,  the  rule  in  regard  to  the  degree  of  in- 
sanity which  would  demand  an  acquittal  is,  that  whenever  it  shall 
appear  from  the  evidence  that,  at  the  time  of  doing  the  act  charged, 
the  prisoner  was  affected  with  insanity,  and  such  affection  was  the 
efficient  cause  of  the  act,  and  that  he  would  not  have  done  the  act 
but  for   that   affection,   he   ought  to    be .  acquitted.(o)     But-  this 
unsoundness  of  mind  must  be  of  such  a  degree  as  to  create  an  un- 

(k)  Ayres  v.  Mussetter,  46  111.  472.  (ri)  Chase  v.  People,  40  111.  352. 

(I)  Eddy  v.  People,  15  111.  386.  (tf)  Hopps  v.  People,  31  111.  385. 
(m)  Fisher  v.  People,  23  111.  283. 

18  • 


138  ESTATES  AND  PERSONS  OF  THE  INCAPACITATED.       [CH.  V. 

Conservators. 

controllable  impulse  to  do  the  act  charged,  by  overriding  the  reason 
and  judgment,  and  obliterating  the  sense  of  right  and  wrong  as  to 
the  particular  act  done,  and  depriving  the  accused  of  the  power  of 
choosing  between  them.(o) 


SECTION   II.  —  APPOINTMENT   OF   CONSERVATORS;     THEIB    POWERS 

AND   DUTIES. 

1.  When  a  conservator  may  be  appointed. 

2.  Summons  to  be  issued. 

3.  Conservator  to  give  bond. 

4.  Bonds  may  be  put  in  suit. 

5.  Duties  of  conservator,  generally. 

6.  To  take  charge  of  the  estate  of  his  ward,  and  return  inventories. 

7.  Requisites  of  an  inventory. 

8.  Conservator  to  settle  his  account  at  least  annually. 

9.  On  final  settlement  to  deliver  estate  and  title  papers. 

10.  The  final  accounting. 

11.  Conservator  to  settle  all  accounts  of  his  ward,  and  sue  in  his  own  name. 

12.  May  with  consent  of  court  perform  the  personal  contracts  of  the  ward. 

13.  To  appear  and  represent  his  ward  in  all  suits  and  proceedings. 

14.  Contracts  of  a  lunatic  after  finding  of  a  jury,  void  as  to  the  lunatic. 

15.  Contracts  made  before  such  finding,  when  may  be  avoided. 

16.  Trading,  bartering  or  gaming  with  a  lunatic,  etc.,  prohibited. 

17.  Conservator  to  frugally  manage  the  estate. 

18.  Investments  to  be  made. 

19.  Conservator  may  lease  his  ward's  estate. 

20.  He  may  by  leave  of  the  county  court  mortgage  the  same. 

21.  Petition  for  leave  to  be  filed. 

22.  Strict  foreclosure  prohibited  and  redemption  prescribed. 

23.  Sale  of  real  estate  may  on  petition  of  the  conservator  be  ordered  by  the 

county  court. 

24.  The  petition. 

25.  Notice  of  application. 

26.  Procedure  as  in  chancery. 

27.  Notice  of  sale. 

28.  Report  of  sale  and  deed. 

29.  Account  of  proceeds. 

30.  Sureties  of  the  conservator  to  be  looked  after  and  kept  sufficient. 

31.  Conservator  may  be  required  to  give  counter  security. 

32.  Conservator  may  be  removed. 

(o)  Hopps  v.  The  People,  31  111.  385. 


CH.  Y.J      ESTATES   AND   PEKSONS   OF   THE   INCAPACITATED.  139 


Conservators. 


33.  To  be  first  summoned. 

34.  He  may  in  a  proper  case  resign. 

35.  Another  conservator  may  be  appointed. 

36.  Fees  and  compensation  of  the  conservator  to  be  reasonable  and  just. 

37.  Conservator  may  be  discharged  and  the  property  restored  to  the  owner  on 

his  restoration  to  reason  or  reformation. 

38.  Notice  of  application  to  be  given  to  the  conservator. 

39.  Procedure  on  the  application. 

40.  Appeals. 

41.  Conservator,  guardian,   curator,  or  committee   of   any  non-resident  idiot, 

lunatic,  insane  or  distracted  person,  spendthrift  or  drunkard,  may  collect 
debts  and  recover  property  of  ward  in  this  State. 
43.  Application  for  sale  of  such  ward's  estate  to  be  made  to  the  circuit  court. 

43.  Notice  of  application. 

44.  Bond  may  be  required. 

45.  Bond  for  costs  must  be  given. 

46.  Repeal  of  former  laws. 

1.  Whenever  any  idiot,  lunatic  or  distracted  person  has  any  estate, 
real  or  personal ;  or  when  any  person  by  excessive  drinking,  gaming, 
idleness  or  debauchery  of  any  kind  so  spends,  wastes  or  lessens  his 
estate  as  to  expose  himself  or  his  family  to  want  or  suffering,  or 
any  county,  town,  or  incorporated  city,  town  or  village  to  any 
charge  or  expense  for  the  support  of  himself  or  his  family,  the 
county  court  of  the  county  in  which  such  person  lives  shall,  on  the 
application  of  any  relative  or  creditor,  or  if  there  be  neither  relative 
or  creditor,  then  any  person  living  in  such  county,  order  a  jury  to 
be  summoned  to  ascertain  whether  such  person  be  idiot,  lunatic  or 
distracted,  a  drunkard  or  such  spendthrift;  and  if  the  jury  return 
in  their  verdict  that  such  person  is  idiot,  lunatic  or  distracted,  or 
drunkard,  or  so  spends,  wastes  or  lessens  his  estate,  it  shall  be  the 
duty  of  the  court  to  appoint  some  fit  person  to  be  the  conservator 
of  such  person. (p)     This  jurisdiction  has  not  been  conferred  on 
probate  courts. 

2.  On  an  application  for  the  appointment  of  a  conservator  of  any 
person  being  filed,  summons  shall  be  issued  and  served  upon  the 
person    for  whom  a  conservator  is  sought  to  be  appointed,  in  the 
same  manner  as  summons  is  issued  and  served  in  cases  in  chancery. 
When  the  application  is  against  an  idiot  or  lunatic,  the  ck-rk  of  the 
court  in  which  the  application  is  filed  shall  also  give  not  less  than 
ten  (10)  days'  notice  thereof  by  at  least  one  insertion  in  some  news- 
paper published  in  the  county.(^) 

(p)  Cothran's  Stats,  955,  §  1.  (q)  %  2,  id. 


140  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.       [CH.  V. 


Conservators. 


3.  The  conservator  so  appointed  shall,  before  entering  upon  the 
duties  of  his  office,  give  bond  payable  to  the  people  of  the  State  of 
Illinois,  with  at  least  two  sufficient  sureties,  to  be  approved  by  the 
court,  in  double  the  amount  of  his  ward's  real  and  personal  estate, 
with  such  condition  as  near  as  may  be  as  provided  in  the  case  of  the 
bonds  of  guardians  of   infants.     Additional  bonds  and  counter 
security  may  be  required  as  hereinafter  provided.(r) 

4.  Bonds  given  in  pursuance  of  this  act  may  be  put  in  suit  in  the 
name  of  the  people  of  the  State  of  Illinois,  to  the  use  of  any  per- 
son entitled  to  recover  on  the  breach  thereof,  and  damages  adjudged 
on  proceedings  had  thereon  as  in  other  cases  of  penal  bonds.(s) 

5.  Such  conservator  shall  have  the  care  and  management  of  the 
real  and  personal  estate  of  his  ward,  and  the  custody  of  his  person 
unless  otherwise  ordered  by  the  court,  and  the  custody  and  educa- 
tion of  his  children,  where  no  other  guardian  is  appointed,  unless 
the  court  orders  otherwise ;  but  this  act  shall  not  be  so  construed 
as  to  deprive  the  mother  of  the  custody  and  education  of  the 
children  without  her  consent,  if  she  be  a  fit  and  competent  person 
to  have  such  custody  and  education.(rf) 

6.  The  conservator  shall,  immediately  upon  his  appointment, 
take  charge  of  the  estate  of  his  ward,  and  within  sixty  days  after 
such  appointment,  or,  if  the  court  is  not  in  session  at  the  expiration 
of  that  time,  at  the  next  term  thereafter,  return  to  the  court  a  true 
and  perfect  inventory  of  the  real  and  personal  estate  of  the  ward, 
signed  by  him  and  verified  by  his  affidavit.    As  often  as  other  estates 
shall  thereafter  come  to  his  knowledge  he  shall  return  an  inventory 
thereof  within  sixty  days  from  the  time  the  same  shall  come  to  his 
knowledge.(w) 

7.  The  inventory  shall  describe  the  real  estate,  its  probable  value 
and  rental,  and  state  whether  the  same  is  incumbered,  and  if  incum- 
bered,  how  and  for  how  much  ;  what  amount  of  money  is  on  hand, 
and  contain  a  list  of  all  personal  property,  including  annuities  and 
credits  of  the  ward,  designating  them  as  "good,"  "doubtful/'  or 
"  desperate,"  as  the  case  may  be.(v) 

8.  The  conservator  shall,  at  the  expiration  of  a  year  from  his 
appointment,  settle  his  accounts  as  conservator  with  the  county 
court,  and  at  least  once  each  one  (1)  year  thereafter,  and  as  much 
oftener  as  the  court  may  require.(w) 

(r)  §  3,  R.  8.  1874,  p.  685. 
(«)  §  4,  id.,  p.  686. 
(0  §  5,  id. 


CH.  V.]        ESTATES   AND   PEKSONS   OF  THE   INCAPACITATED.  141 


Conservators. 


9.  Such  conservator,  at  the  expiration  of  his  trust,  shall  pay  and 
deliver  to  those  entitled  thereto  all  the  money,  estate  and  title  papers 
in  his  hands  as  conservator,  or  with  which  he  is  chargeable  as  such, 
in  such  manner  as  shall  be  directed  by  the  order  or  decree  of  any 
court  having  jurisdiction  thereof.(£) 

10.  On  every  accounting  or  final  settlement  of  a  conservator,  he 
shall  exhibit  and  file  his  account  as  such  conservator,  setting  forth 
specifically,  in  separate  items,  on  what  account  expenditures  were 
made  by  him,  and  all  sums  received  and  paid  out  since  his  last 
accounting,  and  on  what  account  each  was  received  and  paid  out, 
and  showing  the  true  balance  of  money  on  hand,  which  account 
shall  be  accompanied  by  the  proper  vouchers,  and  signed  by  him 
and  verified  by  his  affidavit.^) 

11.  The  conservator  shall  settle  all  accounts  of  his  ward,  and  demand 
and  sue  for  and  receive  in  his  own  name,  as  conservator,  all  personal 
property  of  and  demands  due  the  ward,  or  with  the  approbation  of 
the  court  compound  for  the  same,  and  give  a  discharge  to  the  debtor 
upon  receiving  a  fair  and  just  dividend  of  his  estate  and  effects.(z) 

12.  The  conservator,  by  permission  and  subject  to  the  direction 
of  the  court  which  appointed  him,  may  perform  the  personal  con- 
tracts of  his  ward,  made  in  good  faith  and  legally  subsisting  at  the 
time  of  the  commencement  of  his  disability,  and  which  may  be 
performed  with  advantage  to  the  estate  of  the  ward. (a) 

13.  He  shall  appear  for  and  represent  his  ward  in  all  suits  and 
proceedings,  unless  another  person  is  appointed  for  that  purpose  as 
conservator  or  next  friend ;  but  nothing  contained  in  this  act  shall 
impair  or  affect  the  power  of  any  court  to  appoint  a  conservator  or 
next  friend,  to  defend  the  interest  of  said  ward  impleaded  in  such 
court,  or  interested  in  a  suit  or  matter  therein  pending,  nor  its 
power  to  appoint  or  allow  any  person  as  next  friend  for  such  ward, 
to  commence,  prosecute  or  defend  any  suit  in  his  behalf,  subject  to 
the  direction  of  such  court.(J) 

14.  Every  note,  bill,  bond  or  other  contract  by  an  idiot,  lunatic, 
distracted  person  or  spendthrift,  made  after  the  finding  of  the  jury, 
as  provided  in  section  one  of  this  act,  shall  be  void  as   against  the 
idiot,  lunatic,  distracted  person,  drunkard  or  spendthrift,  and  his 
estate;  but  the  person  making  any  contract  with  such  idiot,  lunatic, 
distracted  person  or  spendthrift  shall  be  bound  thereby.(c) 

(a;)  §    9,  R.  S.  1874,  p.  686.  (a)  %  12,  id. 

(31)  1 10,  id.  (b)  %  13,  id,  p.  687. 

(z)  1 11,  id.  (c)  $  14,  id. 


142  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.       [CH.  V. 


Conservators. 


15.  Every  contract -made  with  an  idiot,  lunatic  or  distracted  per- 
son before  such  finding,  or  with  a  drunkard  or  spendthrift  made 
after  the  application  for  the  appointment  of  a  conservator,  may  be 
avoided,   except  in  favor  of  the  person  fraudulently  making  the 
same.(rf) 

16.  Whoever,  by  trading  with,  bartering,  gaming  or  any  other 
device,  possesses  himself  of  any  property  or  valuable  thing  belong- 
ing to  any  idiot,  lunatic  or  notoriously  distracted  person,  drunkard 
or  spendthrift,  shall  be  deemed  guilty  of  swindling,  and  upon  con- 
viction thereof  be  fined  in  a  sum  not  exceeding  two  thousand  dol- 
lars, or  confined  in  the  county  jail  not  exceeding  one  year,  or 
both.(e) 

17.  The  conservator  shall  manage  the  estate  of  his  ward  frugally 
and  without  waste,  and  apply  the  income  and  profit  thereof,  so  far 
as  the  same  may  be  necessary,  to  the  comfort  and  suitable  support 
of  his  ward  and  his  family,  and  the  education  of  his  children.  (/) 

18.  It  shall  be  the  duty  of  the  conservator  to  put  and  keep  his 
ward's  money  at  interest,  upon  security  to  be  approved  by  the  court, 
or  invest  the  same  in  United  States  bonds  or  other  United  States 
interest-bearing  securities.     Personal   security  may  be   taken   for 
loans  not  exceeding  one  hundred  dollars.     Loans  in  larger  amounts 
shall  be  upon  real-estate  security.     No  loan  shall  be  made  for  a 
longer  time  than  tliree  years,  unless  authorized  by  the  court :  Pro- 
vided, the  same  may  be  extended  from  year  to  year,  without  the 
approval  of  the  court(^) 

19.  The  conservator  may  lease  the  real  estate  of  the  ward,  upon 
such  terms  and  for  such  length  of  time  as  the  county  court  shall 
approve.(A) 

20.  The  conservator  may,  by  leave  of  the  county  court,  mortgage 
the  real  estate  of  the  ward  for  a  term  of  years,  or  in  fee.(  i  ) 

21.  Before  any  mortgage  shall  be  made,  the  conservator  shall 
petition  the  county  court  for  an  order  authorizing  such  mortgage 
to  be  made,  in  which  petition  shall  be  set  out  the  condition  of  the 
estate  and  the  facts  and  circumstances  on  which  the  petition  is 
founded,  and  a  description  of  the  premises  sought  to  be  mortgaged.(y) 

22.  No  decree  of  strict  foreclosure  shall  be  made  upon  any  such 
mortgage,  but  redemption  shall  be  allowed,  as  is  now  provided  by 

(d)  §  15,  R.  S  1874,  p.  687.                       (A)  §  19,  id. 

(«)  §  16,  id.  (0  §  20,  id. 

(/)|17,  id.  tf)§31,  id. 
(3)  8  18,  id. 


CH.  V.]        ESTATES   AXD    PERSONS   OF  THE   INCAPACITATED.  143 

Conservators. 

law  iu  cases  of  sales  under  executions  upon  common-law   judg- 
ments.^)    That  is  within  twelve  months. 

23.  On  the  petition  of  the  conservator,  the  county  court  of  the 
county  where  the  ward  resides,  or  if  the  ward  does  not  reside  in  the 
State,  of  the  county  where  the  real  estate  or  some  part  of  it  is  situ- 
ated, may  order  the  sale  of  the  real  estate  of  the  ward  for  his  sup- 
port and  that  of  his  family  when  the  court  shall  deem  it  necessary, 
or  to  invest  the  proceeds  in  other  real  estate,  or  for  the  purpose  of 
otherwise  investing  the  same  or  for  the  purpose  of  paying  the  debts 
of  the  ward  or  the  education  of  the  children  of  said  ward.(Z) 

24.  The  petition  shall  set  forth  the  condition  of  the  estate  and 
the  facts  and  circumstances  on  which  the  petition  is  founded,  and 
shall  be  signed  by  the  conservator  and  verified  by  his  affidavit,  and 
shall  be  filed  at  least  ten  days  before  the  commencement  of  the  term 
of  court  at  which  the  application  shall  be  made.(w) 

25.  Notice  of  such  application  shall  be  given  to  all,  persons  con- 
cerned by  publication  in  some  newspaper  published  in  the  county 
where  the  application  is  made  at  least  once  in  each  week  for  three 
successive  weeks,  or  if  no  newspaper  is  published  in  such  county,  by 
.setting  up  written  or  printed  notices  in  three  of  the  most  public  places 
in  the  county  at  least  three  weeks  before  the  session  of  the  court  at 
which  such  application  shall  be  made.     The  ward  shall  be  served 
with  a  copy  of  such  notice  at  least  ten  days  before  the  hearing  of 
such  application.     Such  service  may  be  proved  in  the  same  manner 
as  the  service  of  a  copy  of  a  bill  in  chancery. (n) 

26.  Such  application  shall  be  docketed  as  other  causes,  and  the 
petition  may  be  amended,  heard  or  continued  for  further  notice  or 
for  other  cause.    The  practice  in  such  cases  shall  be  the  same  as  in 
other  cases  in  chancery.(o) 

27.  The  court  shall  direct  notice  of  the  time  and  place  of  sale  to 
be  given,  and  may  direct  the  sale  to  be  made  on  reasonable  credit, 
and  require  such  security  of  the  conservator  or  purchaser  as  the 
interest  of  the  ward  may  require.(  p) 

28.  It  shall  be  the  duty  of  the  conservator  making  such  sale,  as 
soon  as  may  be,  to  make  return  of  such  sale  to  the  court  granting  the 
order,  which,  if  approved,  shall  be  recorded,  and  shall  vest  in  the  pur- 
chaser or  purchasers  all  the  interest  of  the  ward  in  the  estate  so  sold.^) 

(k)  §  22,  R.  S.  1874,  p.  687.  (o)  §  26,  id. 

(0    §23,  id.  (p)  8  27,  id. 

(m)  £  24,  id.,  p.  688.  (?)  §  28,  id. 
(»)  §  25,  id. 


144  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.      [cil.  V. 

Conservators. 

29.  An  account  of  all  moneys  and  securities  received  by  any  con- 
servator for  the  sale  of  real  estate  of  his  ward,  shall  be  returned  oil 
oath  of  such  conservator  to  the  county  court  of  the  county  where 
letters  of  conservatorship  were  obtained,  and  such  money  shall  be 
accounted  for,  and  subject  to  the  order  of  the  county  court  in  like 
manner  as  other  moneys  belonging  to  such  ward.     In  case  of  sale 
for  re-investment  in  this  State,  the  money  shall  be  re-invested  under 
the  direction  of  the  court(r) 

30.  It  shall  be  the  duty  of  the  county  court  at  each  accounting 
of  the  conservator  to  inquire  into  the  sufficiency  of  his  sureties,  and 
if  at  any  time  it  has  cause  to  believe  that  the  sureties  of  a  conservator 
are  insufficient  or  in  failing  circumstances,  it  shall,  after  summon- 
ing the  conservator  if  he  be  not  before  the  court,  require  him  to 
give  additional  security,  (s) 

31.  Upon  the  application  of  the  surety  of  any  conservator  and 
after  summoning  the  conservator,  the  court  may,  if  it  believes  him 
to  be  insolvent  or  in  doubtful  circumstances,  require  him  to  give 
counter  security  to  his  sureties.^) 

32.  The  county  court  may  remove  a  conservator  for  his  failure  to 
give  bond  or  security  or  additional  or  cou  nter  security  when  required  ; 
or  for  failure  to  make  inventory  or  to  account  and  make  settlement, 
or  support  the  ward,  or  when  he  shall  have  become  insane,  or  have 
removed  out  of  the  State,  or  become  incapable  or  unsuitable  for  the 
discharge  of  his  duties,  or  for  failure  to  discharge  any  duty  required 
of  him  by  law  or  the  order  of  the  court,  or  for  other  good  cause.(w) 

33.  Before  removing  a  conservator  the  court  shall  summon  him 
to  show  cause  why  he  should  not  be  removed  for  the  cause  alleged. 
If  the  conservator  has  left  the  State  or  cannot  be  served  with  pro- 
cess he  may  be  notified  in  the  same  manner  as  non-resident  defend- 
ants in  chancery,  by  publication,  (v) 

34.  When  it  appears  proper  the  court  may  permit  the  conservator 
to  resign  his  trust,  if  he  first  settles  his  accounts  and  delivers  over 
the  estate  as  by  the  court  directed,  (w) 

35.  Upon  the   removal,  resignation   or  death    of  a  conservator 
another  may  be  appointed  who  shall  give  bond  and  security  and  per- 
form the  duties  prescribed  by  this  act.     The  court  shall  have  power 
to  compel  the  conservator  so  removed  or  resigned,  or  the  executor  or 
administrator  of  a  deceased  conservator,  to  deliver  up  to  such  suc- 

(r)  8  29,  R.  S.  1874,  p.  688.  («)  S  32,  id. 

*)  1 30  id.  («)  |  33,  id. 

it)  $  31   id.  (w)  §  34,  id.,  p.  689. 


CH.  V.J       ESTATES   AND   PEKSONS   OF  THE   INCAPACITATED.  145 

Conservators. 

cessor  all  the  goods,  chattels,  moneys,  title  papers  and  other  effects 
in  his  custody  or  control  belonging  to  the  ward ;  and  upon  failure 
to  so  deliver  the  same,  to  commit  the  person  offending  to  jail  until 
he  shall  comply  with  the  order  of  the  court.  (2) 

36.  Conservators  on  settlement  shall  be  allowed  such  fees  and 
compensation  for  their  services  as  shall  seem  reasonable  and  just  to 
the  courtly) 

37.  When  any  person,  for  whom  a  conservator  has  been  or  may 
be  appointed  under  the  provisions  of  this  act,  shall  be  restored  to 
his  reason,  or  in  case  such  drunkard  or  spendthrift  shall  have  become 
so  reformed  as  to  be  a  proper  and  safe  person  to  have  the  care  and 
management  of  his  estate,  such  person  may  apply  to  the  county 
court  of  the  county  in  which  such  conservator  was  appointed  to 
have  said  conservator  removed  and  the  care  and  management  of  his 
property,  or  so  much  thereof  as  shall  remain  restored  to  him.(z) 

38.  Notice  of  such  intended  application  shall  be  given  to  the  con- 
servator ten  days  before  the  commencement  of  the  term  of  the 
court  to  which  the  application  shall  be  made. (a) 

39.  It  shall  be  the  duty  of  the  court  to  which  any  such  applica- 
tion, as  provided  in  the  foregoing  section,  is  -made,  on  proof  that 
said  conservator  has  been  duly  notified  of  such  application,  to  cause 
a  jury  to  be  summoned  to  try  the  question  whether  said  applicant 
is  a  fit  person  to  have  the  care,  custody  and  control  of  his  or  her 
property,  and  if  the  said  jury  return  in  their  verdict  that  such  per- 
son is  a  fit  person  to  have  the  control  of  such  property  as  aforesaid, 
then  the  court  shall  enter  an  order  fully  restoring  such  person  to  all 
the   rights   and    privileges    enjoyed  before   said   conservator  was 
appointed :  Provided,  that  such  conservator,  so  removed,  shall  be 
allowed  a  reasonable  time  to  settle  his  accounts  as  such,  and  to  pass 
over  the  money  or  property  in  his  hands,  and  such  removal  shall  not 
invalidate  any  contracts  made  in  good  faith  by  said  conservator, 
while  acting  as  such :  Provided,  further,  that  no  application  shall 
be  entertained  for  the  removal  of  any  conservator  appointed  for  any 
person  under  the  provisions  of  this  act,  within  less  than  one  year 
from  such  appointment,  unless  for  neglect  of  duty  or  mismanage- 
ment of  his  trust.(i) 

40.  Appeals  shall  be  allowed  to  the  circuit  court  from  any  order 
or  judgment  made  or  rendered  under  this  act,  upon  the  appellant 

(x)  §  35,  R.  S.  1874,  p.  689.  (a)  §  38,  id. 

(y)  §  36,  id.  (6)  §  39,  id. 

(z)  §37,  id. 

19 


146  ESTATES   AHD    PERSONS   OF  THE   INCAPACITATED.      [CH.  V. 


Conservators. 


giving  such  bond  and  security  as  shall  be  directed  by  the  court ; 
but  no  appeal  from  an  order  removing  a  conservator  shall  in  any 
wise  affect  such  order  until  the  same  be  reversed,  (c) 

41.  The  conservator,  guardian,  curator,  or  committee  of  any  non- 
resident idiot,  lunatic,  insane  or  distracted  person,  spendthrift  or 
drunkard,  appointed  in  any  of  the  United  States  or  territories,  or 
any  foreign  country,  in  pursuance  of  the  laws  of  any  such  State, 
territory,  or  country,  may  commence  and  prosecute  in  his  name  as 
such  conservator,  guardian,  curator  or  committee,   suits   for   the 
recovery  of  any  real  or  personal  property,  or  any  interest  therein  in 
this  State,  belonging  to  any  such  idiot,  lunatic,  insane  or  distracted 
person,  spendthrift  or  drunkard,  or  for  any  injury  to  any  such  prop- 
erty, in  any  of  the  courts  of  record  in  this  State  having  jurisdiction 
in  similar  cases  by  persons  in  their  own  rights,  and  may  collect,  receive 
and  remove  to  his  place  of  residence  any  personal  estate  of  his  ward.(^) 

42.  It  shall  be  lawful  for  any  such  conservator,  guardian,  curator, 
or  committee  of  any  non-resident  idiot,  lunatic,  insane  or  distracted 
person,  spendthrift  or  drunkard,  who  shall  obtain  an  order  from  the 
proper  court  in  the  State.,  territory  or  country  in  which  such  con- 
servator, guardian,  curator  or  committee  was  appointed,  authorizing 
him  to  make  application  for  the  sale  of  his  ward's  real  estate  or  per- 
sonal property  in  this  State,  upon   filing  a  certified  copy  of  such 
order  for  record  in  the  office  of  the  clerk  of  the  circuit  court  of  the 
county  in  this  State  in  which  the  property,  or  the  major  part  thereof, 
is  situated,  by  petition  to  such  court  to  obtain  an  order  authorizing 
such  conservator,  guardian,  curator  or  committee  to  sell  and  transfer 
any  such  property  or  interest  therein,  belonging  to  any  such  idiot, 
lunatic,  insane  or  distracted  person,  spendthrift  or  drunkard,  and 
to  make  deeds  and  conveyances  thereof,  which  deeds  and  convey- 
ances executed  and  acknowledged  in  pursuance  of  the  laws  of  this 
State,  or  of  the  State,  territory  or  country  in  which  such  conserva- 
tor, guardian,  curator  or  committee  was  appointed,  shall  be  effectual 
in  law  and  equity  to  pass  to  the  grantee  or  grantees  therein  all  the 
right,  title  and  interest  of  such  idiot,  lunatic,  insane  or  distracted 
person,  spendthrift  or  drunkard  therein.     The  court  ordering  the 
sale  may  authorize  any  person  to  act  as  auctioneer  of  the  property, 
but  the  deed  shall  be  executed  by  the  conservator,  guardian,  curator 
or  committee.(e) 

40,  R.  S.  1874,  p.  689.  (e)  §  42,  id.,  p.  690. 

i  41,  id. 


CH.  V.  ]      ESTATES   AND   PERSONS   OF   THE   INCAPACITATED.  147 


Conservators. 


43.  Notice  of  the  time  and  place  of  presenting  said  petition  to 
said  circuit  court  shall  be  given  by  publication  in  the  nearest  news- 
paper, for  four  successive  weeks,  the  first  of  which  publication  shall 
be  at  least  forty  days  before  the  time  fixed  for  the  presentation  of 
said  petition,  requesting  all  persons  interested  to  show  cause  why 
the  prayer  of  said  petition  should  not  be  granted.(/) 

44.  The  said  circuit  court  may,  in  its  discretion,  require  such  con- 
servator, curator,  guardian  or  committee  to  file  a  bond,  with  suffi- 
cient  securities,  conditioned  for  the   faithful    application   of  the 
money  which  may  be  received  for  any  such  property,  for  the  benefit, 
and  to  the  use  of  such  idiot,  lunatic,  insane   or  distracted  person, 
spendthrift  or  drunkard. (g) 

45.  In  all  suits  by  non-resident  conservators,  guardians,  curators 
or  committees,  they  shall  give  a  bond  for  costs  as  in  cases  of  other 
non-residents,  (h) 

46.  Chapter  fifty  of  the  Eevised  Statutes  of  1845,  entitled  "  Idiots 
and  Lunatics,"  and  an  act  entitled  "An  act  to  provide  for  the  sale 
of  the  estates  of  insane  persons,"  approved  February  12,  1853,  and 
an  act  entitled  "  An  act  to  amend  chapter  L  of  the  Revised  Stat- 
utes of  1845,"  approved  February  15,  1865,  and  an  act  entitled  "An 
act  to  amend  chapter  fifty  of  the  Revised  Statutes,  entitled  *  Idiots 
and   Lunatics,'  and  to  extend  the  provisions  thereof  to  habitual 
drunkards,"  approved  April  19,  1869,  and  all  other  acts  and  parts  of 
acts  inconsistent  with  the  provisions  of  this  act  are  hereby  repealed, 
except  as  herein  re-enacted  :    Provided,  that  this  section  shall  not 
be  so  construed  as  to  affect  any  rights  existing  or  actions  pending 
at  the  time  this  act  shall  take  effect.(t') 


SECTION   III.  —  COMMITMENT   AND   DETENTION   OF   LUNATICS. 

1.  Jurisdiction  of  the  county  court  may  be  invoked  by  petition. 

2.  Petition  to  be  filed,  process  to  issue,  and  be  served  and  returned. 

3.  Subpo3nas  may  issue. 

4.  Jury,  trial,  continuance. 

5.  Verdict,  its  form. 

6.  Verdict  to  be  recorded,  order  of  commitment  entered,  and  application  for 

admission  of  respondent  to  superintendent  of  a  state  hospital  for  the 
insane  to  be  made  by  the  clerk. 

(/)  §  43,  R.  S.  1874,  p.  690.  (h)  §  45,  id. 

(g)  %  44,  id.  (i)  %  46,  act  of  March  21, 1874 


148  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.       \CH.  V. 

Commitment  and  detention  of  lunatics. 

7.  When  commitment  may  be  had. 

8.  Communication  to  be  had  between  the  clerk  and  superintendent  relative 

to  the  reception  of  the  respondent. 

9.  Mittimus  may,  if  necessary,  be  issued  by  the  clerk  ;  its  form. 

10.  Receipt  to  be  given  by  the  superintendent ;  its  form. 

11.  Diseased  persons  and  idiots  not  to  be  received. 

12.  Respondent  may  by  order  of  court,  pending  proceedings,  be  restrained  of 

his  liberty. 

13.  Costs  of  the  proceedings  where  respondent  is  not  a  pauper. 

14.  Costs  where  he  is  a  pauper. 

15.  Bond  to  be  given  where  he  is  not  a  pauper. 

16.  Clothing  to  be  furnished  each  patient. 

17.  Clothing  to  be  furnished  where  patient  is  a  pauper  by  the  county. 

18.  Patient  to  be  removed  when  ordered  to  be  discharged  by  the  trustees. 

19.  Non-resident  patient  may  be  received. 

20.  Whenever  reason  is  restored  the  patient  may  leave. 

21.  Insane  pauper  may  be  committed  to  a  county  hospital. 

22.  No  one  to  be  committed  without  a  trial  by  jury. 

23.  Penalty  for  receiving  or  detaining  any  person  not  duly  committed. 

1.  That  when  any  person  is  supposed  to  be  insane  or  distracted, 
any  near  relative,  or  in  case  there  be  none,  any  respectable  person 
residing  in  the  county  may  petition  the  judge  of  the  county  court 
for  proceedings  to  inquire  into  such  alleged  insanity  or  distraction. 
For  the  hearing  of  such  application  and  proceedings  thereon,  the 
county  court  shall  be  considered  as  always  open.(  j  )* 

2.  Upon  the  filing  of  such  petition,  the  judge  shall  order  the 
clerk  of  the  court  to  issue  a  writ  directed  to  the  sheriff  or  any  con- 
stable, or  tins  person  having  the  custody  or  charge  of  the  alleged 
insane  or  distracted  person,  unless  he  shall  be  brought  before  the 
court  without  such  writ,  requiring  the  alleged  insane  person  to  be 
brought  before  him  at  a  time  and  place  to  be  appointed  for  the 
hearing  of  the  matter.     It  shall  be  the  duty  of  the  officer  or  per- 
son to  whom  the  writ  is  directed  to  execute  and  return  the  same, 
and  bring  the  alleged  insane  person  before  the  court  as  directed 
in  the  writ.(&) 

3.  The  clerk  shall  also  issue  subpoenas  for  such  witnesses  as  may 
be  desired  on  behalf  of  the  petitioner,  or  of  the  person  alleged  to 
be  insane,  to  appear  at  the  time  fixed  for  the  trial  of  the  mat- 
ter.^) 

4.  At  the   time  fixed  for  the  trial  a  jury  of  six  persons,  one  of 

0)  §  1»  act  March  21,  1874,  in  rela-        *  This  jurisdiction  does  not  extend 

tion  to  the  commitment  and  detention  to  probate  courts, 
of  lunatics;    Cothran's  Ann'd  Stats.,        (k)  §  2,  Cothran's  Stats.,  950. 
§  1,  p.  950.  (I)  %  3,  id.  p.  951. 


CH.  V.J      ESTATES  AND   PEKSONS  OF  THE  INCAPACITATED.  149 

Lunatics. 

whom  shall  be  a  physician,  shall  be  impaneled  to  try  the  case.  The 
case  shall  be  tried  in  the  presence  of  the  person  alleged  to  be  insane, 
who  shall  have  the  right  to  be  assisted  by  counsel^  and  may  chal- 
lenge jurors  as  in  civil  cases.  The  court  may,  for  good  cause,  con- 
tinue the  case  from  time  to  time.(w) 

5.  After  hearing  the  evidence,  the  jury  shall  render  their  verdict 
in  writing,  signed  by  them,  which  shall  embody  the  substantial 
facts  shown  by  the  evidence,  which  verdict  may  be  substantially  in 
the  following  form :  (n) 

STATE  OP  ILLINOIS,) 

County, )  8t 

"  We,  the  undersigned  jurors  in  the  case  of  (naming  the  person  alleged 

to  be  insane),  having  heard  the  evidence  in  the  case,  are  satisfied  that  said 
is  insane,  and  is  a  fit  person  to  be  sent  to  a  state  hospital  for  the  insane ; 
that  he  is  a  resident  of  the  State  of  Illinois,  and  county  of  ;  that  his 

age  is  ;  that  his  disease  is  of  duration  ;  that  the  cause  is  supposed 

to  be  (or  is  unknown) ;  that  the  disease  is  (or  is  not)  with  him  hereditary ; 

that  he  is  not  (or  is)  subject  to  epilepsy,  and  that  he  does  (or  does  not)  manifest 
homicidal  or  suicidal  tendencies.  (If  the  person  be  a  pauper,  the  fact  shall 
also  be  announced  in  the  verdict.)"?!. 

6.  Upon  the  return  of  the  verdict,  the  same  shall  be  recorded  at 
large  by  the  clerk,  and  if  it  appears  that  the  person  is  insane,  and 
is  a  fit  person  to  be  sent  to  a  state  hospital  for  the  insane,  the 
court  shall  enter  an  order  that  the  insane  person  be  committed 
to  a  state  hospital  for  the  insane,  and  thereupon  it  shall  be  the 
duty  of  the  clerk  of  the  court  to  make  application  to  the  superin- 
tendent of  some  one  of  the  state  hospitals  for  the  insane  for  the 
admission  of  such  insane  persons.(o) 

7.  If  such  insane  person  is  a  pauper  the  application  shall  be  first 
made  to  the  nearest  hospital,  but  if  he  be  not  a  pauper,  application 
shall  be  made  to  such  one  of  the  state  hospitals  for  the  insane  as 
the  relatives  or  friends  of  the  patient  shall  desire.    In  any  case,  if, 
on  account  of  the  crowded  condition  of  any  one  of  the  hospitals, 
or  for  other  good  reason,  the  patient  cannot  be  received  therein,  or 
it  is  not  desirable  to  commit  him  thereto,  he  may  be  committed  to 
any  other  of  said  hospitals.     Upon  receiving  any  such  application, 
the  superintendent  shall  immediately  inform  the  clerk  whether  the 
patient  can  be  received,  and  if  so,  at  what  time ;  and  if  not,  shall 
state  the  reason  why.(jo) 

(m)  %  4,  R.  S.  1874,  p.  681.  (o)  §  6,  id.,  p.  682. 


150  ESTATES   AND   PERSONS   OF   THE   INCAPACITATED.      [CH.  V. 


Commitment  and  detention  of  lunatics. 


8.  Upon  receiving  notice  at  what  time  the  patient  will  be  received, 
the  clerk  shall,  in  due  season  for  the  conveyance  of  the  person  to 
the  hospital  by*  the  appointed  time,  issue  a  warrant  directed  to  the 
sheriff  or  any  other  suitable  person,  preferring  some  relative  of  the 
insane  person  when  desired,  commanding  him  to  arrest  such  insane 
person  and  convey  him  to  the  hospital ;  and  if  the  clerk  is  satisfied 
that  it  is  necessary,  he  may  authorize  an  assistant  to   be   em- 
ployed.(g) 

9.  The  warrant  may  be  substantially  as  follows : 

STATE  OP  ILLINOIS,  ) 

County, )  8S 

"  The  People  of  the  State  of  Illinois  to 

"  You  are  hereby  commanded  forthwith  to  arrest  ,  who  has  been  de- 

clared to  be  insane,  and  convey  him  to  the  Northern  (or  as  the  case  may  be) 
Illinois  Hospital  for  the  Insane  (and  you  are  hereby  authorized  to  take  to  your 
aid  an  assistant,  if  deemed  necessary),  and  of  this  warrant  make  due  return  to 
this  office  after  its  execution.  Witness  my  hand  and  the  seal  of  the  county 
court  of  county,  this  day  of  ,  A.  D. 

[L.  8.]  ,  Clerk  of  County  Court  County."(r) 

10.  Upon  receiving  the  patient,  the  superintendent  shall  indorse 
upon  said  warrant  a  receipt  as  follows : 

"  NOBTHEBN  (or  as  the  case  may  be)  ILLINOIS  HOSPITAL  FOB  THE  INSANE. 
"  Received  this  day,  A.  D.  ,  the  patient  named  in  the  within 

warrant. 

,  Superintendent." 

This  warrant,  with  a  receipt  thereon,  shall  be  returned  to  the 
clerk,  to  be  filed  by  him  with  the  other  papers  relating  to  the 
case.(s) 

11.  No  person  having  any  contagious  or  infectious  disease,  and 
no  idiot,  shall  be  admitted  to  either  of  the  state  hospitals.    When 
the  trustees  and  superintendent  shall  find  that  an  idiot  has  been 
received  into  the  hospital,  they  may  discharge  him.(^) 

12.  If  the  court  shall  deem  it  necessary,  pending  proceedings  and 
previous  to  verdict,  or  after  verdict  and  pending  admission  to  the 
hospital,  temporarily  to  restrain  of  his  liberty  the  person  alleged  to 
be  insane,  then  the  court  shall  make  such  order  in  that  behalf  aa 
the  case  may  require,  and  the  same  being  entered  of  record,  a  copy 

(q)  %  8,  R.  S.  1874,  p.  682.  («)  §  10,  id. 

(r)  %  9,  id.  (t)  §  11,  id. 


OH.  V.J      ESTATES   AND   PEKSONS   OF   THE   INCAPACITATED.  151 

Lunatics. 

thereof  certified  by  the  clerk  shall  authorize  such  person  to  be  tem- 
porarily detained  by  the  sheriff,  jailer  or  other  suitable  person  to 
whom  the  same  shall  be  directed,  (w) 

13.  When  a  person  not  a  pauper  is  alleged  to  be  insane,  and  is 
found  by  the  jury  not  to  be  insane,  the  costs  of  the  proceeding, 
including  the  fees  of  the  jury,  shall  be  paid  by  the  petitioner,  and 
judgment  may  be  awarded  against  him  therefor.     If  such  person  is 
found  to  be  insane,  such  costs  shall  be  paid  by  his  guardian,  con- 
servator or  relatives,  as  the  court  may  direct.    If  the  person  alleged 
to  be  insane  is  a  pauper,  the  costs  of  the  proceeding,  including  the 
fees  of  the  jury,  shall  be  paid  out  of  the  county  treasury :  Provided, 
if  such  pauper  is  found  not  to  be  insane,  the  court  may,  in  its  dis- 
cretion, award  the  costs  against  the  petitioner.(v) 

14.  The  expense  of  conveying  a  pauper  to  the  hospital  shall  b« 
paid  by  the  county  in  which  he  resides,  and  that  of  any  other 
patient  by  his  guardian,  conservator  or  relatives ;  and  in  no  case 
shall  any  such  expense  be  paid  by  the  State,  or  out  of  any  funds 
for  the  insane.    The  fees  of  the  sheriff  for  conveying  any  person  to 
a  hospital  shall  be  the  same  as  for  conveying  convicts  to  the  peni- 
tentiary.^) 

15.  If  the  person  be  not  a  pauper,  then  one  or  more  persons, 
relatives  or  friends  of  the  patient  shall,  upon  his  admission  into  the 
hospital,  become  responsible  to  the  trustees  for  finding  the  patient 
in  clothes,  and  removing  him  when  required ;  and  shall  execute  a 
bond  conditioned  as  follows,  viz. : 

"  Know  all  men  by  these  presents,  that  we  and  ,  of  the  county 

of  ,  and  State  of  Illinois,  are  held  and  firmly  bound  unto  the  trustees  of 

the  Northern  (or  as  the  case  may  be)  Illinois  Hospital  for  the  Insane,  in  the 
sum  of  $100  (one  hundred  dollars)  for  the  payment  of  which  we  jointly  and 
severally  bind  ourselves  firmly  by  these  presents. 

"  The  condition  of  this  obligation  is,  that  whereas,  insane  person  of 

the  county  and  State  aforesaid,  has  been  admitted  as  a  patient  into  the  said 
hospital  for  the  insane :  Now,  therefore,  if  we  shall  find  said  patient  in  suitable 
and  sufficient  clothing  whilst  may  remain  in  said  institution,  and  shall 

promptly  pay  for  such  articles  of  clothing,  as  it  may  be  necessary  to  procure 
for  said  at  the  hospital,  and  shall  remove  from  said  hospital  when 

required  by  the  trustees  to  do  so,  then  this  obligation  to  be  void,  otherwise  to 
remain  in  full  force. 

"  Witness  our  hands  and  seals,  this  day  of  ,  A.  D. 

"  [SEAL.] 

"  [SEAL.]  "(*) 

(«)  §  12,  R.  S.  1874,  p.  682.  (w)  8  14,  id. ,  p.  683. 

(t>)  §  13,  id.  (x)  §  15,  id. 


152  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.       [CH.  V. 

Lunatics. 

16.  The  clothing  to  be  furnished  each  patient  upon  being  sent  to 
the  hospital,  shall  not  be  less  than  the  following :  for  a  male,  three 
new  shirts,  a  new  and  substantial  coat,  vest,  and  two  pairs  of 
pantaloons  of  woolen  cloth,  three  pairs  of  woolen  socks,  a  black  or 
dark  stock  or  cravat,  a  good  hat  or  cap,  and  a  pair  of  new  shoes  or 
boots,  and  a  pair  of  slippers  to  wear  within  doors.    For  a  female,  in 
addition  to  the  same  quantity  of  under  garments,  shoes  and  stock- 
ings, there  shall  be  two  woolen  petticoats  or  skirts,  three  good 
dresses,  a  cloak  or  shawl,   and  a  decent  bonnet.    Unless   such 
clothing  is  delivered  in  good  order  to  the  superintendent,  he  shall 
not  be  bound  to  receive  the  patient.(y) 

17.  If  the  insane  person  be  a  pauper,  it  shall  be  the  duty  of  the 
judge  of  the  county  court  to  see  that  he  is  furnished  with  the  nec- 
essary amount  of  substantial  clothing  at  the  time  he  is  sent  to  the 
hospital,  and  from  time  to  time  while  he  remains  a  patient  in  the 
hospital,  and  that  he  be  removed  therefrom  when  required  by  the 
trustees ;  the  expense  of  such  clothing  and  removal  shall  be  paid 
out  of  the  county  treasury,  upon  the  certificate  of  the  judge  of  the 
county  court. (z) 

18.  Whenever  the  trustees  shall  order  any  patient  discharged, 
the  superintendent  shall  at  once  notify  the  clerk  of  the  county  court 
of  the  proper  county  thereof,  if  the  patient  is  a  pauper,  and  if  not, 
Bhall  notify  all  the  persons  who  signed  the  bond  required  in  section 
fifteen  of  this  act,  and  request  the  removal  of  the  patient.     If  such 
patient  be  not  removed  within  thirty  days  after  such  notice  is 
received,  then  the  superintendent  may  return  him  to  the  place  from 
whence  he  came,  and  the  reasonable  expenses  thereof  may  be  re- 
covered by  suit  on  the  bond,  or  in  case  of  a  pauper,  shall  be  paid 
by  the  proper  county.(a) 

19.  Whenever  application  shall  be  made  for  a  patient  not  residing 
within  the  State,  if  the  superintendent  shall  be  of  opinion  that  from 
the  character  of  the  case  it  is  probably  curable,  and  if  there  be  at 
the  time  room  in  the  hospital,  the  trustees  may,  in  their  discretion, 
order  the  patient  to  be  admitted,  always  taking  a  satisfactory  bond 
for  the  maintenance  of  the  patient,  and  for  his  removal  when  re- 
quired.    The  rate  of  maintenance  in  such  cases  shall  be  fixed  by 
the  trustees,  and  two  months'  pay  in  advance  shall  be  required. 

(y)  %  16,  R.  S.  1874,  p,  683.  (a)  §  18,  id. 

(8)  §  17,  id. 


CH.  V.]      ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.  153 


Lunatics. 


But  no  such  patieut  shall  be  detained  without  the  order  of  a  court 
of  competent  jurisdiction,  or  the  verdict  of  a  jury.(^) 

20.  When  any  patient  shall  be  restored  to  reason,  he  shall  have 
the  right  to  leave  the  hospital  at  any  time,  and  if  detained  therein 
contrary  to  his  wishes  after  such  restoration,  shall  have  the  privilege 
of  the  writ  of  habeas  corpus  at  all  times,  either  on  his  own  applica- 
tion, or  that  of  any  other  person  in  his  behalf;  if  the  patient  is 
discharged  on  such  writ,  and  if  it  shall  appear  that  the  superintend- 
ent has  acted  in  bad  faith  or  negligently,  the  superintendent  shall 
pay  all  the  costs  of   the  proceeding.     Such  superintendent  shall 
moreover  be  liable  to  a  civil  action  for  false  imprisonment.(c) 

21.  This  act  shall  not  be  construed  to  prevent  the  committing  of 
any  insane  pauper  to  the  hospital  for  the  insane  of  the  county  in 
which  he  may  reside,  where  such  a  hospital  is  provided.(t?) 

22.  No  superintendent,  or  other  officer  or  person  connected  with 
either  of  the  state  hospitals  for  the  insane,  or  with  any  hospital  or 
asylum  for  insane  or  distracted  persons,  in  this  State,  shall  receive, 
detain  or  keep  in  custody,  at  such  hospital  or  asylum,  any  person 
who  shall  not  have  been  declared  insane  by  the  verdict  of  a  jury, 
and  authorized  to  be  confined  by  the  order  of  a  court  of  competent 
jurisdiction  ;  and  no  trial  shall  be  had  of  the  question  of  the  sanity 
or  insanity  of  any  person  before  any  judge  or  court  without  the 
presence  of  the  person  alleged  to  be  insane,  (e) 

23.  If  any  superintendent,  or  other  officer  or  person  connected 
with  either  of  the  state  hospitals  for  the  insane,  or  with  any  hospital 
or  asylum  for  insane  or  distracted  persons,  in  this  State,  whether 
public  or  private,  shall  receive  or  detain  any  person  who  has  not 
been  declared  insane  by  the  verdict  of  a  jury,  and  whose  confine- 
ment is  not  authorized  by  the  order  of  a  court  of  competent  juris- 
diction, he  shall  be  confined  in   the  county  jail  not  exceeding,  one 
year,  or  fined  not  exceeding  five  hundred  dollars,  or  both,  and  be 
liable  civilly  to  the  person  injured  for  all  damages  which  he  may 
have  sustained;  and  if  he  be  connected  with  either  of  the  insane 
hospitals    of   this    State,  he    shall    be    discharged    from    service 
therein.  (/) 

(&)  §  19,  K.  S.  1874,  p.  683.  («)  §  22,  id. 

(c)  |  20,  id.,  p.  684.  (/)  §  23,  id. 

(d)  §  21,  id. 

20 


154  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.       [CH.  V. 

Forms  —  statement. 

POEMS. 

Proceedings  may  be  commenced  by  petition,  as  follows : 

STATEMENT  OP  INSANITY. 

STATE  OP  ILLINOIS, 
County  of  , 

In  the  County  Court  of  County. 

To  the  Honorable  ,  Judge  of  said  court : 

Your  petitioner  ,  respectfully  represents  that  ,  of  the  county 

of  ,  and  State  of  Illinois,  is  insane,  and  that  for  his  benefit,  and  the 

safety  of  the  community,  ought  to  be  committed  to  the  Illinois  State 

Hospital  for  the  Insane.    The  facts  in  h          case  can  be  proven  by  , 

county  physician,  and  by  ,  all  of  whom  reside  in  said  county.     That 

your  petitioner  believes  the  said  to  be  absolutely  non  compos  mentis, 

and  that  is  incapable  of  governing  self.  That  your  petitioner,  after 
careful  inquiry,  believes  that  said  insane  person  has  no  property,  and  is  a 
pauper,*  ,  wherefore,  your  petitioner  ,  moved  only  by  divers 

good  and  humane  considerations,  does  request  the  interposition  of  this  court 
in  this  behalf.  Tour  petitioner,  therefore,  prays  this  honorable  court  to  cause 
a  writ  to  be  issued,  requiring  the  said  to  be  brought  before  this  court, 

at  a  time  to  be  fixed  by  the  court,  that  a  jury  may  be  summoned  to  inquire 
into  the  truth  of  the  matters  alleged  in  this  petition ;  that  the  said 
may  be  adjudged  non  compos  mentis,  and  that  such  orders  and  other  proceed- 
ings may  be  made  and  instituted  as  to  this  court  may  seem  meet  and  proper. 

STATE  OP  ILLINOIS,  | 
County  of  ,    \  ** 

,  being  duly  sworn,  says  that  the  foregoing  petition,  by  him  sub- 
scribed, is  true. 

Sworn  and  subscribed  before  me,  ^ 
,  clerk  of  the  county  court  I 
of  county,  this         day  of 

,  A.D.  18    .  J 

,  Clerk. 

"Whereupon  a  writ  is  issued  to  inquire  into  the  facts  alleged  in 
the  petition,  as  follows : 

WRIT  OF  INQUISITION. 
STATE  OP  ILLINOIS,  [ 
County  of  ,    <jss 

The  People  of  the  State  of  Illinois  to  the  sheriff  of  said  county,  greeting : 

Whereas,  it  hath  been  represented  to  the  Hon.  ,  judge  of  the  county 

court  of  said  county,  by  the  petition  of  ,  under  oath,  and  filed  in  said 

*  The  complaint  or  petition  or  application  in  case  of  a  person  of  substance,  may  be 
made  by  a  relative  or  creditor,  and  if  there  be  neither  in  the  county,  then  any  person 
living  in  the  county  may  make  it.  Care  should  be  taken  to  show  a  cause  within  the 
Btatute.  See  p.  148,  supra. 


CH.  V.]       ESTATES   AND   PEKSONS   OF  THE   INCAPACITATED.  155 


Forms  —  venire. 


court,  that  is  insane,  and  that  for  benefit,  and  for  the  safety  of 

the  community,  he  ought  to  be  committed  to  the  Hospital  for  the 

Insane,  and  that  a  conservator  ought  to  be  appointed  to  take  charge  of 
property ;  and  the  said  judge  having  fixed  the  time  of  the  hearing  of  the  mat- 
ters alleged  in  said  petition  for  the        day  of  ,  A.  D.  18     ,  at        o'clock, 

.  M.,  and  ordered  that  a  writ  issue  out  of  said  court,  directing  the  sheriff  of 
said  county  to  take  and  safely  keep  the  said  so  that  he  have  him  on 

said  day  last  named  at  the  court-house  in  said  county,  to  answer  said  petition. 

We  do,  therefore,  hereby  command  you  to  take  the  body  of  the  said  , 

if  he  shall  be  found  in  your  county,  and  safely  keep,  so  that  he  be  and 

appear  before  our  county  court  of  county,  on  said         day  of  , 

A.  D.  18    ,  at        o'clock,      .  M.,  at  the  court-house  in  ,  in  said  county, 

to  answer  unto  said  petition  and  to  abide  by  what  may  be  adjudged  thereon. 
And  have  you  then  and  there  this  writ,  with  an  indorsement  thereon  in  what 
manner  you  shall  have  executed  the  same. 

Witness  ,  clerk  of  the  county  court  of  county,  and  the  seal  of 

said  court  at  ,  in  said  county,  this        day  of  ,  A.  D.  18     . 

,  Clerk. 

Before  any  person  not  legally  pronounced  insane  is  admitted  to 
the  hospital  as  a  patient  alleged  to  be  insane,  the  judge  shall  order 
a  trial  by  jury,  consisting  of  six  persons,  one  of  whom  shall  be  a 
physician,  to  try  the  issue. 

The  following  is  the  form  of  venire  used : 

VENIRE. 

STATE  OF  ILLINOIS,) 
County  of  ,    J  8S 

The  People  of  the  State  of  Illinois  to  the  sheriff  of  said  county,  greeting : 

You  are  hereby  commanded  to  summon  six  good  and  lawful  men,  one  of 
whom,  at  least,  is  to  be  a  physician,  to  appear  before  our  county  court  of  said 
county,  on  the  day  of  ,  A.  D.  18  ,  at  o'clock,  .  M.,  to  serve  as  a 

jury  in  the  case  of  ,  alleged  to  be  insane  ;  hereof  fail  not  to  make  due 

service  and  return  as  the  law  directs. 

Witness  ,  clerk  of  our  said  court,  and  the  seal  thereof,  at  , 

this        day  of  ,  A.  D.  18     . 

,  Clerk  of  the  county  court  of  said  county. 

County  court  of  county, 

In  the  matter  of 

(Indorsement.) 

Inquisition  of  Insanity. 

VENIRE. 

Filed  ,18    . 

.Clerk. 
Returnable  ,  at        o'clock,      .  M. 


156  ESTATES   AND   PERSONS   OF  THE   INCAPACITATED.      [CH.  V. 


Forms  —  the  record. 


Served  the  within  writ  by  summoning  the  following  named  persons,  viz. : 
.    For  service,  $        .    Mileage,  $        .     Return,  $ 

,  Sheriff. 
By  ,  Deputy. 

THE  RECORD,  WITH  THE  VERDICT  AND  CERTIFICATE. 

STATE  OP  ILLINOIS,  ) 
County  of  ,    )** 

Be  it  remembered,  that  on  this  day,  to  wit,  on  the  day  ,  A.  D. 

18    ,  the  same  being  one  of  the  davs  of  term,  18    ,  of  the  county  court 

of  county. 

Present  thereat 

Hon.  ,  Judge, 

;-  ,  Sheriff, 

'  fl-  ,  Clerk. 

The  following,  among  other  proceedings,  were  by  and  before  said  court  had 
and  entered  of  record,  to  wit : 

In  the  matter  of  the  alleged  insanity  of  .  Now  comes  ,  who 

is  alleged  to  be  insane,  in  the  custody  of  ,  sheriff  of  county, 

also  comes  ,  at  whose  instance  he  was  arrested,  also  comes  a  jury  of 

,  good  and  lawful  men,  one  of  whom  is  a  physician,  to  wit :  , 

doctor  of  medicine  ,  who,  after  being  impaneled  and  sworn,  and  after 

hearing  the  evidence  adduced  and  arguments  of  counsel,  retire  in  charge  of  an 
officer  to  consider  their  verdict,  and  on  their  return,  in  the  presence  of  the 
said  rendered  their  verdict  in  the  words  and  figures  as  follows,  to 

wit: 

[See  §  5,  p.  149,  supra,  for  the  form  of  verdict.] 

Whereupon  it  is  considered  by  the  court  that  the  said  is  an  insane 

person.  And  that  the  said  be  committed  to  and  detained  in  a  State 

hospital  for  the  insane  (see  §  7,  p.  149,  supra,  and  §  23,  p.  153,  supra),  pursuant 
to  law. 

STATE  OF  ILLINOIS,  )      . 
county,     J 

I,  ,  clerk  of  the  county  court  of  county,  in  the  State  afore- 

said, do  hereby  certify  that  the  foregoing  is  a  true  and  correct  transcript  of  the 
record  of  proceedings  had  and  taken  by  and  before  said  court,  in  the  matter 
therein  set  forth. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
eald  county  court,  at  ,  in  said  county,  this  day  of  ,  18  . 

,  Clerk. 


CH.  VI.]  PERSONAL   ESTATE   IN   ADMINISTRATION.  157 

In  the  hands  of  the  executor  or  administrator. 

CHAPTEK  VI. 

PERSONAL  ESTATE  IN  ADMINISTRATION.* 

SECTION   I.  Collection  and  disposition  of,  by  the  executor  or  administrator. 
II.  In  the  hands  of  guardians  or  conservators. 


SECTION  I.  —  COLLECTION  AND  DISPOSITION  OF,  BY  THE  EXECUTOR 
OR  ADMINISTRATOR. 

1.  The  retrospect. 

2.  Personal  property,  in  due  course  of  administration,  governed  by  the  law  of 

domicile. 

3.  The  title  of  the  personal  representative  of  a  decedent  to  the  personal 

estate. 

4.  His  trust. 

5.  The  cestuis  que  trust,  the  widow,  the  children,  the  creditors,  legatees,  devi- 

sees and  distributees  or  heirs,  their  relation  to  the  proceedings  in  admin- 
istration. 

6.  Special  proceedings  requisite  to  divest  the  title  of  the  devisees  or  heirs  to 

the  real  property. 

7.  Scope  of  this  chapter. 

8.  The  inventory  to  be  made  and  returned  within  three  months  from  the  date 

of  letters  testamentary  or  of  administration  ;  how  made ;  failure  to  make, 
subjects  the  delinquent  to  citation  to  make  inventory  and  account. 

0.  Citation  to  exhibit  inventory  and  account. 

10.  Form  of  inventory. 

11.  The  appraisement,  the  warrant,  the  oath. 

12.  The  bill  of  appraisement. 

*PERSONAL  PROPERTY  ;  ASSETS.  9.  Contracts  in  general. 

10.  Contracts  defined. 

1.  Things  personal.  11.  Consideration  essential  to. 

2.  Mercantile  transactions.  12.  Sale  or  exchange. 

3.  Insufficiency  of  assets.  13.  Fraud  annuls  all  contracts  which 

4.  Distinctions   between  things  per-  it  infects. 
sonal  and  things  reed.  14.  Warranty. 

5.  Conversion  of  real  property ;  spe-  15.  Caveat  emptor. 

cial  proceedings  necessary  for  the  16.  Guaranty,  statute  of  frauds, 

purpose,  against  the  property  and  17.  Bailment,  pawn, 

also  against  the  heir.  18.  Lien. 

6.  The  practice  in  such   cases  gov-  19.  Hiring  and  borrowing, 
erned  by  the  superior  courts.  20.  Debts. 

7.  The  absolute   title   and  qualified  21.  Bonds. 

right  of  the  administrator  or  ex-  22.  Bills  of  exchange. 

ecutor  to  the  assets  of  the  dece-  23.  Cheques. 

dent.  24.  Promissory  notes. 

8.  The  assets  considered.  25.  Insurance  policies. 


158 


PERSONAL   ESTATE   IN   ADMINISTRATION.  [OH.  VI. 


In  the  hands  of  the 


13.  Inventories  and  exemplifications  thereof  to  be  prima  facie  evidence. 

14.  Additional  appraisement. 

15.  Care  and  diligence  required  of  executors  and  administrators  in  getting  in 

the  estates  of  their  testates  and  intestates. 

16.  Appraisers'  fees  two  dollars  per  day  each. 

17.  Proceedings  in  case  the  assets  do  not  exceed  the  amount  of  the  widow's 

allowance. 

18.  Collection  and  disposition  of  assets. 

19.  Sale  of  personal  property. 


26.  Bottomry. 

27.  The  care  and  judgment  required  in 
the  management  of  the  assets. 

1.  PERSONAL  PROPERTY.    "THINGS 
PERSONAL."     Under  this  designation 
are  included  all  goods  and  chattels  — 
terms  equally  applicable  to  interests 
in  lands  less  than  a  leasehold  —  money 
and  other  movables,  and  the    rights 
and  profits  issuing  out  of  them.     Be- 
sides, all  movables,  shares  in  canals, 
railways,  banks  and  other  similar  in- 
terests are,  by  various  statutes,  made 
personal   property.     They  are  often- 
times of  an  intangible  or  incorporeal 
nature,  such    as    copyrights,   patent- 
rights,  trade-marks,  etc. 

2.  MERCANTILE    TRANSACTIONS.  — 
Bonds,  bills  of   exchange,  checks  or 
cheques,  promissory  notes,  bank  notes, 
coupons,  insurance  policies,  mortgages, 
trust  deeds,  and  the  like,  all  come  un- 
der   the    terms     personal     property, 
things  personal,  and  constitute  assets 
in  the  hands  of  the  personal  repre- 
sentatives of  a  decedent ;  while  things 
real,  or  real  property  (subject  to  the 
just  debts  and   charges  of   the  dece- 
dent and  his  personal  representatives), 
pass  to  the  heirs  or  devisees. 

3.  INSUFFICIENCY  OF  ASSETS.   If  the 
assets  are    insufficient   to    pay   such 
debts  and  charges,  the  real  property  is 
to  be  converted,  on  special  application 
to  the  court  and  under  its  orders  and 
decrees,  into  cash,  and  thus   become 
assets.(a) 

4.  In  administration,  the  broad  dis- 
tinction made  between  THINGS  REAL 
and  THINGS  PERSONAL  consists  in  their 
distribution,  it  being  the  general  rule 

(a)  See  p.  62,  swpra ;  pp.  159, 165,  infra. 

(b)  See  22  and  23  Car.  ii,  ch.  10,  ex- 
plained by  29  Car.  ii,  cb.  3. 

(c)  See  ch.  x,  infra. 

(d)  See  Hill's  Chancery,  610-638. 


of  the  common  law  that  the  whole  of 
the  real  estate  goes  to  the  heir,  while 
things  personal  are  distributed  among 
the  next  of  kin. (b) 

Our  statute,(e)  however,  gives  the 
same  direction  to  both  real  and  per- 
sonal property. 

Then,  again,  the  effect  of  the  mar- 
riage contract  upon  chattels  real  and 
chattels  personal  (d)  gave  different 
rules  of  enjoyment  and  disposition. 
The  statute  both  here  and  in  England 
(e)  has,  to  a  great  extent,  obliterated 
these  peculiar  rules,  so  that  to-day  the 
differences  between  real  and  personal 
property  in  administration  exist  rather 
in  name  than  in  fact.  The  old  effects 
of  these  differences  still  remain. 

If  we  concede  full  jurisdiction  over 
the  personalty,  it  is  difficult  to  see  why 
the  same  should  not  be  exercised  over 
the  realty  until  the  debts  of  the  de- 
ceased are  paid. 

5.  CONVERSION  OF  REAL  PROPERTY, 
SPECIAL  PROCEEDINGS  NECESSARY.  It 
has,  however,  been  so  often  held  that 
the  real  property  by  descent  goes  to 
the  heir,  and  that,  in  order  to  divest  the 
title  of  the  heir,  he  must  be  personally 
notified,  that  the  county  court,  in  deal- 
ing with  the  realty,  to  acquire  jurisdic- 
tion over  it,  must  also  acquire  jurisdic- 
tion over  the  person  of  the  heir.(/)  To 
convert  the  real  property  into  assets  to 
pay  debts,  in  Illinois,  the  probate  j  uris- 
diction  must  proceed  not  only  in  rem 
against  the  property,  but  in  pemonam. 
He  must  be  proceeded  against  by  sum- 
mons, which  must  be  served  either 
personally  or  constructively  upon  him 
like  a  chancery  summons.^) 

The  litigation,  relative  to  the  exer- 

(e)  Id. ;  33  and  34  Viet.,  ch  93. 

(/)  Ferguson  v.  Hunter,  2  Gilm.  657; 
Botsford  v.  0' Conner,  57  111.  72;  Schnett 
v.  Chicago,  38  id.  382. 

(g)  See  Hill's  Chancery,  Process. 


CH.  VI.]  PERSONAL   ESTATE  IN   ADMINISTRATION. 


159 


Executor  or  administrator. 


1.  THE  RETROSPECT.  We  have  already  become  acquainted  with 
the  jurisdiction  of  the  county  courts  in  the  administration  of  the 
estates  left  by  persons  who  have  deceased,  and  in  matters  concerning 
the  persons  and  property  of  those  incapable  of  caring  for  themselves 
and  their  substance. 

We  have  carefully  examined  the  means  through  which  such  courts 
act,  by  appointing  and  controlling  executors,  administrators,  guard- 
ians and  conservators.  The  powers,  duties,  rights  and  responsibili- 
ties devolved  upon  these  functionaries  have,  to  some  considerable 
extent,  been  discussed  in  view  of  the  statute  law  and  in  the  light  of 
the  authorities.  We  come  now  to  the  subject-matter  of  this  con- 
servative or  administrative  jurisdiction,  the  estates  themselves. 


else  of  this  jurisdiction,  in  converting 
real  property  into  assets,  lias  mainly 
arisen  collaterally,  i.  e.,  the  orders  and 
decrees  of  the  probate  court  have  been 
attacked  by  the  heir,  either  by  bill  in 
chancery  or  ejectment. 

The  supreme  court  of  the  United 
States  in  several  cases (h)  have 
utterly  refused  to  collaterally  ques- 
tion the  probate  jurisdiction.  The 
supreme  court  of  Illinois  still  adhere 
to  the  requirement  that  the  heir  must 
be  notified  ;  beyond  this,  collateral  in- 
quiry is,  also,  here  denied.(i) 

6.  But   all   courts  give  the   widest 
latitude  to  DIRECT  INQUIRY  BY  APPEAL 
OR  WRIT  OP  ERROR.     Therefore,  in  the 
exercise  of    probate   jurisdiction,  al- 
though collateral  inquiry  is  either  de- 
nied or  limited,  yet  direct  inquiry  is 
encouraged.     Hence,  the  county  courts 
are  held  to  close  rules  and  a  well  de- 
fined practice,  by  the  superior  courts, 
in  all  matters  in  administration,  but 
particularly  in  the  conversion  of  real 
property  into  assets  by  the  administra- 
tor or  executor. 

7.  After  his  qualification  by  giving 
bond  and  taking  the  oath,  the  TITLE 

TO    THE    PERSONAL    PROPERTY    of   the 

estate  becomes  ABSOLUTE,  in  the  execu- 
tor or  administrator.  He  has  a  QUALI- 
FIED RIGHT — he  holds  an  absolute  title 
against  all  the  world,  but  it  is  in  trust. 
He  should  have  a  certified  copy  of  his 
appointment,  that  is  to  say,  if  he  be  an 
executor,  a  complete  exemplification, 
certified  by  the  clerk  and  presiding 

(h)  Orignon  v.  Astor,  Comstock  v. 
Crawford.  See  2  Hill's  Com.  Law,  645. 


judge,  of  the  probate,  with  a  copy  of  the 
will  and  letters  testamentary  ;  if  an 
administrator,  of  his  letters  of  admin- 
istration, as  the  evidence  of  this  title ; 
after  being  clothed  with  the  title  and 
the  power,  the  first  inquiry  of  the 
executor  or  administrator  is  as  to  the 
property  in  possession,  and  next  as  to 
that  in  action. 

8.  GOODS  AND  CHATTELS.     All  kinds 
of  visible  property  in  possession  are  too 
well  and  generally  known  to  require 
mention  even,  but  that  class  of  things 
personal,  known  to  the  law  as  chases  in 
action,  including  all  kinds  of  contracts 
and  agreements,  demands  careful  con- 
sideration here,  for  the  executor  or  ad- 
ministrator usually  finds  a  large  por- 
tion  of  the  estate  committed   to   his 
charge  invested  or  involved  in  these 
chosen  in  action.    They  are  assets  in  his 
hands,  and  to  liquidate  the  claims  al- 
lowed against  the  estate,  it  is  necessary 
and  a  part  of  his  duty  to  convert  such 
assets  into  cash.     He  must  get  in  the 
estate,  reduce  it  to  possession,  and  col- 
lect and  convert  into  cash,  not  only  the 
goods  and  visible  property,  but  he  must 
dispose  of  these  choses  in  action ;  a 
large  class  of  these,  however,  are  mer- 
cantile  contracts,   most  of  them  sus- 
ceptible    of     immediate     conversion. 
Those  already  mentioned^")  comprise 
this  class.     We   will  now  more   par- 
ticularly   describe     contracts     gener- 
ally, and  then  consider  mercantile  con- 
tracts. 

9.  CONTRACTS  may  be  considered  as 

(i)  Schnell  v.  Chicago,  38  111.  382. 
(j)  See  p  158,  infra. 


160 


PERSONAL  ESTATE  IN  ADMINISTRATION.  [CH.  VI. 


Collection  and  disposition  of 


The  distinctions  between  the  two  great  classes  of  property,  (a) 
personal  and  real,  and  the  different  rules  pertaining  to  them  admon- 
ish us  to  consider  them  separately  as  they  come  under  this  jurisdic- 
tion for  administration  or  conservation.  Therefore,  we  shall  discuss 
in  this  chapter  the  personal  estate  in  administration,  and  in  the 
succeeding  chapter  real  property  in  administration. 

2.  PERSONAL  PROPERTY,  when  viewed  in  this,  the  probate  juris- 
tion,  appertains  to  the  person,  has  no  situs  in  the  law  other  than  the 
domicile(Z>)  of  the  proprietor  ;  it  ebbs  and  flows,  goes  and  comes  with 
him  ;  like  his  mind  and  will,  it  accompanies  him  where  ever  he 
goes,  is  ambulatory  till  his  death,  when  it  rests  in  the  place  of  his 

(a)  See  chapter  x,  infra.  cipal  Officer,  Domicile,  Personal  Prop- 

(b)  Hill's  Ch.  Pr.  56-70 ;  Hill's  Muni-    erty. 

one  of  the  species  of  title  to  things  per- 
sonal. In  its  widest  and  most  general 
sense,  the  word  "  contract "  signifies  an 
engagement,  obligation  or  compact ;  it 
may  be  express  or  implied,  executory  or 
executed;  and  there  must  be  two  or 
more  contracting  parties  of  sufficient 
ability  to  make  a  contract. 

10.  A  CONTRACT  is  an  agreement  or 
undertaking,  upon  sufficient  consid- 
eration to  do,  or  not  to  do,  a  particular 
thing.  First,  then  it  is  an  agreement, 
a  mutual  bargain  or  convention,  and, 
therefore,  there  must  be  at  least  two 
contracting  parties  of  sufficient  ability 
to  make  a  contract,  as  where  A  con- 
tracts with  B  to  pay  him  $100.  A 
thereby  transfers  a  property  in  such 
sum  to  B,  which  property,  however,  is 
not  in  possession,  but  in  action  merely, 
and  recoverable  by  suit  at  law. 

A  contract  or  agreement  may  be 
either  express  or  implied.  Express 
contracts  are  where  the  terms  of  the 
agreement  are  openly  uttered  and 
avowed  at  the  time  of  the  making,  as 
to  deliver  an  ox  or  ten  loads  of  timber, 
or  to  pay  a  stated  price  for  certain 
goods.  Implied  contracts  are  such  as 
reason  and  justice  dictate,  which,  there- 
fore, the  law  presumes  that  every  man 
undertakes  to  perform.  As,  if  I  em- 
ploy a  person  to  do  any  business  for 
me,  or  perform  any  work,  the  law  im- 
plies that  I  undertook,  or  contracted  to 
pay  him  as  much  as  his  labor  deserves  ; 
and,  if  I  do  not  make  him  amends,  he 
has  a  remedy  for  bringing  his  action 
upon  such  implied  promise,  undertak- 
ing or  assumpsit.  Or  where  a  person 


buys  an  article  without  stipulating  for 
the  price,  he  is  presumed  to  have  under- 
taken to  pay  its  market  value  or  its 
worth. 

A  contract  may  be  either  executory 
or  executed.  An  executory  contract  is 
one  in  which  a  party  binds  himself  to 
do  or  not  to  do  a  particular  thing ;  a 
contract  executed  is  one  in  which  the 
object  of  contract  is  performed.  As  if 
A  agrees  to  change  horses  with  B  and 
they  do  it  immediately,  in  which  case 
the  possession  and  the  right  are  trans- 
ferred together.  This  is  an  executed 
contract ;  but  if  A  and  B  agree  to  ex- 
change horses  next  week,  here  the 
right  only  vests,  and  their  reciprocal 
property  in  each  other's  horse  is  not  in 
possession ;  a  contract  executory  con- 
veys only  a  chose  in  action,  a  thing  in 
course  of  transmutation. 

11.  Second.  A  SUFFICIENT  CON- 
SIDERATION is  necessary  to  the  valid- 
ity of  a  contract.  A  nudum  pactum 
(bare  promise),  or  agreement  to  do  or 
pay  any  thing  on  one  side  without  any 
consideration  on  the  other,  is  totally 
void  in  law,  and  a  man  cannot  be  com- 
pelled to  perform  it ;  as  if  one  man 
promises  to  give  another  $100 ;  here 
there  is  nothing  contracted  for  or  given 
on  the  one  side,  and,  therefore,  there 
is  nothing  binding  on  the  other.  Any 
degree  of  reciprocity,  however,  which 
is  held  in  law  to  be  a  sufficient  con- 
sideration, will  prevent  the  contract 
from  being  void. 

Ihird.  The  thing  agreed  to  be 
done  or  omitted.  A  contract  is  an 
agreement  upon  sufficient  considera- 


CH.  VI.]  PERSONAL  ESTATE   IN   ADMINISTRATION". 


161 


By  the  executor  or  administrator. 


domicile,  (c)  Then  the  lex  loci  distributes  it,  if  he  die  testate,  ac- 
cording to  the  testatio  mentis,  manifested  in  the  most  formal  man- 
ner by  written  directions,  which  go  to  make  his  will ;  if  he  die  in- 
testate, according  to  the  course  of  the  common  law  as  modified  by 
statute ;  in  either  case  by  due  course  of  administration,  (d) 

3.  Through  the  executor  or  administrator,  as  the  case  maybe,  this 
jurisdiction  when  death  comes,  at  the  place  of  his  domicile  (if  he 
have  none,  then  where  the  property  is),  stepping  as  it  were  into  the 
shoes  of  the  deceased,  collects,  cares  for,  inventories,  and  manages 
the  estate  left  by  him.  The  executor  or  administrator  to  a  certain 


(c)  §  11,  R.  S.  1874,  p.  1103. 

(d)  A    last  will   is  defined    to    be 
the   testatio  mentis,  or  testament ;   a 
declaration,  provision  or  direction  of 
a  testator  in  that  he  would  have  to 
be   done  with  his   estate,  or  how  it 
should  go  after  his  death,  as  the  evi- 
dence of    his  mind    on  the   subject, 
(Went,  Off.  Ex.  265  ;  8  L.,  Ill  a,  322  b; 
PI.  343  ;  1  Bulst.  223  ;  Sheph.  Touch. 
399  ;  Fitz.  G.  239.)  or  the  appointment 
of  a  testamentary  heir.     Swinb.  3,  12. 
The  testator  by  the  will  has  testified 
his  niind  or  intention.     It  contains  his 
direction  and  declaration,  being  a  pro- 
vision for  the  event  in  contemplation 
of  which  it  was  made,  which  must  be 
carried  into   execution   so   far  as  its 


meaning  can  be  ascertained  from  the 
words  he  uses,  taken  in  connection 
with  the  law  which  directs  how  papers 
of  the  kind  shall  be  expounded,  and 
the  evidence  in  the  case,  to  which  the 
law  is  to  be  applied  according  to  such 
circumstances  as  may  bear  on  the 
written  declaration  of  intention.  It  is 
an  acknowledged  principle,  that  wills 
are  to  be  construed  according  to  the 
intention  of  the  testator ;  which  shall 
be  carried  into  full  effect  in  all  cases 
which  are  not  repugnant  to  the  settled 
law  and  rules  of  policy  of  the  country 
in  which  they  are  to  be  executed.  The 
laws  of  every  country  prescribe  the 
rules  by  which  such  intention  is  to  be 
ascertained.  See  chapter  n,  supra. 


tion  to  "  do  or  not  to  do  a  particular 
thing."  Among  the  kinds  of  contract 
are:  (1)  Sale  or  exchange;  (2)  bail- 
ment ;  (3)  hiring  and  borrowing. 

12.  SALE  OR  EXCHANGE  is  a  trans- 
mutation of  property  from  one  man  to 
another,  in  consideration  of  some  price 
or  recompense  in  value ;  for  there  is 
no  sale  without  a  recompense ;  there 
must  be  quid  pro  quo.  If  it  be  a  com- 
mutation of  goods  for  goods,  it  is  an 
exchange  ;  but  if  it  be  a  transferring 
of  goods  for  money,  it  is  called  a  sale. 

If  a  man  agrees  with  another  for 
goods  at  a  certain  price,  he  may  not 
carry  them  away  before  he  has  paid 
for  them  ;  for  it  is  no  sale  without  pay- 
ment, unless  the  contrary  be  expressly 
stipulated;  and, therefore,  if  the  ven- 
dor says  the  price  of  a  beast  is  $10, 
and  the  vendee  says  he  will  give  $10, 
the  bargain  is  struck,  and  neither  of 
them  is  at  liberty  to  be  off  the  bar- 
gain, provided  immediate  possession 
be  tendered ;  but  if  neither  the  money 
21 


be  paid,  nor  the  goods  delivered,  nor 
tender  made,  nor  any  subsequent 
agreement  be  entered  into,  it  is  no 
contract,  and  the  owner  may  dispose  of 
the  goods  as  he  pleases.  If  any  part 
of  the  price  is  paid  down,  if  it  be  but 
a  penny,  or  any  portion  of  the  gooda 
delivered  by  way  of  deposit,  the  prop- 
erty in  the  goods  absolutely  passes, 
and  the  vendee  may  recover  the  goods 
by  action,  as  well  as  the  vendor  may 
the  price  of  them. 

If  there  be  a  sale  of  goods  which 
are  to  be  sent  by  a  carrier  to  the  pur- 
chaser, and  the  goods  perish  or  sus- 
tain damage  while  in  transitu,  in  the 
absence  of  special  circumstances,  the 
rule  of  law  applies  ;  that  is,  delivery 
to  the  carrier  is  delivery  to  the  con- 
signee, who  will,  therefore,  have  to 
bear  the  loss.  But  if  the  parties 
agree  that  the  vendor  shall  not  merely 
deliver  the  goods  to  the  carrier,  but 
that  they  shall  actually  be  delivered 
at  their  destination,  and  express  such 


162 


PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VI. 


Collection  and  disposition  of 


extent  becomes  the  owner  of  this  property.     It  is  not  absolutely  his. 
He  is  an  officer  of  the  court ;  the  trustee  of  an  express  trust,  (e) 

4.  He  holds  it  for  the  incapacitated  ;  the  widow  and  the  orphan  ; 
for  the  creditors,  for  the  friends  and  relatives  ;  the  beneficiaries,  lega- 
tees, or  distributees  :  all  his  cestuis  que  trust.  His  title  to  the  per- 
sonalty relates  back  to  the  date  of  the  death  of  the  decedent.  For 
them  all,  he  must  discharge  his  duties  and  exercise  his  powers.  Over 
the  property  in  charge,  he  must  ever  exercise  the  same  care  and  dili- 
gence that  the  prudent  are  presumed  to  bestow  about  their  business 
and  in  the  management  of  their  property.  The  property  is  in  court ; 
he  is,  in  and  out  of  court,  the  personal  representative  of  the  deceased. 
(e)  Hill  on  Trustees  ;  Perry  on  Trusts  ;  Hill's  Chan.  Pr. ;  Trusts. 

intention,  in  such  a  case,  if  the  goods 
perish  in  the  hands  of  the  carrier,  the 
vendor  is  not  only  liable  for  the  loss, 
but  for  whatever  damages  may  have 
been  sustained  by  the  purchaser  in 
consequence  of  the  breach  of  con- 
tract to  deliver  at  the  place  of  desti- 
nation. 

General  rules  may  be  modified  by 
the  expressed  intentions  of  the  par- 
ties. Where  an  offer  to  sell  goods  is 
made,  and  a  letter  accepting  such  offer, 
without  qualification,  is  put  into  the 
post,  the  bargain  is  complete. 

Where  an  unpaid  vendor  of  goods 
has  put  them  into  the  hands  of  a  car- 
rier to  be  by  him  conveyed  and  deliv- 
ered to  the  vendee,  and  the  vendee  or 
consignee,  before  actual  delivery  to 
him,  becomes  bankrupt  or  insolvent, 
the  vendor  or  consignor  has  a  right  to 
resume  possession  of  the  goods  by 
stopping  them  in  transitu;  but  his 
right  to  do  so  will  be  defeated  if  the 
vendee  or  consignee  of  the  goods  has 
assigned  his  interest  in  them  to  a 
bona  fide  purchaser. 

13.  FRAUD  destroys  a  contract  db 
initio,  so  that  a  fraudulent  seller  is 
precluded  from  insisting  upon  the 
completion  of  the  contract,  and  a 
fraudulent  purchaser  gets  no  title. 

Willful  misrepresentation  to  induce 
another  to  contract  or  to  part  with 
goods,  under  the  belief  that  such  rep- 
resentation was  true,  is  not  tolerated 
by  law,  and  such  misrepresentation 
may  be  alleged  with  a  view  to  annul- 
ling the  contract,  and  to  compelling  res- 
titution of  property  transferred  or 
noney  paid  in  pu  isuance  of  it. 


14.  WARRANTY.    By  the  civil  law 
an  implied  warranty  was  annexed  to 
every  sale  in  respect  to  the  title  of  the 
vendor;  and  so,  too,  in  our  law,  a  pur- 
chaser of  goods  and  chattels  may  have 
a  satisfaction  from  the  vendor  if  he 
sells  them  as  his  own  and  the  title 
proves  deficient,  without  any  express 
warranty  for  that  purpose.     But,  with 
regard  to  the  goodness  of  the  wares  so 
purchased,  the  vendor  is  not  bound  to 
answer,  unless  he  expressly  warrant? 
them  to  be  sound  and  good  ;  or  unless 
it  is  proved  that  he  knew  them  to  be 
otherwise,  and  has  used  art  to  disguise 
them  ;  or  unless  they  turn  out  different 
from  what  he  represented  them  to  the 
buyer.     Thus,  if  a  man  sells  a  horse, 
and  expresses  by  warranty  that  it  is 
sound,  the  contract  is  void  if  the  horse 
is  proved  to  be  otherwise. 

15.  Where  goods  may  be  inspected 
by  the  buyer,  and  there  is  no  fraud  on 
the   part  of    the    seller,  the    maxim 
CAVEAT    EMPTOR    applies ;    the    pur- 
chaser takes  them,  at  his  risk,  even 
though  the  defect  which  exists  in  them 
is  latent,  and  not  discoverable  on  ex- 
amination. 

Where  goods  are  bought  by  sample, 
the  law  implies  that  the  goods  shall 
reasonably  answer  the  specified  de- 
scription. If  the  bulk  does  not  reason- 
ably answer  the  description  in  a  com- 
mercial point  of  view,  the  seller  is 
liable  for  the  amount  paid  for  the 
goods. 

16.  A  GUARANTY  is  a  mercantile 
instrument,  which  is  usually  evidenced 
by  writing,  not  under  seal,  whereby 
one  man  contracts  on  behalf  of  another, 


CH.  VI.  J 


PERSONAL   ESTATE   IIS"   ADMINISTRATION. 


163 


By  the  executor  or  administrator. 


5.  ALLOWANCES  may  be  made  by  the  court  to  the  widow  and 
children  which  shall  take  precedence  of  the  claims  of  the  creditors. 

THE  EXPENSES  OE  ADMINISTRATION  first  are  to  be  paid.  THE 
CLAIMS  OE  THE  CREDITORS  are  then  paramount.  Until  all  debts, 
expenses  and  allowances  are  paid  and  satisfied,  neither  devisees,  lega- 
tees, nor  heirs  or  distributees  have  any  beneficial  interest  in  the 
estate,  either  real  or  personal.  The  title  to  the  real  property  it  is 
true  passes  to  the  heirs,  but  to  the  creditors  they  must  respond  or 
surrender  the  estate.  (/)  The  legatees,  devisees  or  distributees  then 
to  protect  their  own  interests,  must  come  into  the  county  court,  with 
the  executor  or  administrator,  unite  with  him  in  resisting  the  claims, 

the  supreme  court  against  several 
heirs,  for  the  debt  of  their  ancestor, 
the  court  directed  that  neither  of  them 
should  be  subjected  to  a  greater  liabil- 
ity than  to  the  extent  of  the  amount 
which  came  to  him  by  descent.  Van- 
meter's  Heirs  v.  Love's  Heirs,  33  111. 
260. 


(/)  EXTENT  OF  THEIR  LIABILITY  FOR 
DEBTS  OF  THE  ANCESTOR.  The  liabil- 
ity of  heirs  for  the  debts  of  their  an- 
cestors, both  at  law  and  in  equity,  is 
to  the  extent  of  the  full  amount  which 
came  to  them  by  descent.  But  it 
seems  an  heir  should  not  be  made  lia- 
ble beyond  the  amount  he  has  thus 
received.  So,  in  entering  a  decree  in 


an  obligation  to  which  he  is  made  as 
liable  as  the  proper  and  primary  party. 
The  Statute  of  Frauds  enacts  that  no 
action  shall  be  brought  whereby  to 
charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  de- 
fault or  miscarriages  of  another,  unless 
the  agreement  upon  which  action  is 
brought,  or  some  memorandum  or  note 
thereof,  be  in  writing,  signed  by  the 
party  to  be  charged  therewith,  or  some 
person  thereunto  by  him  lawfully 
authorized,  if  verbal  only,  no  action 
shall  be  brought  whereby  to  charge 
the  defendant  thereupon.  §  1,  R.  S. 
1874,  p.  540. 

17.  Bailment,  from  the  French  bail- 
ler,  to  deliver,  is  a  delivery  of  goods  in 
trust,  upon  a  contract  expressed  or 
implied,  that  the  trust  shall  be  faith- 
fully executed  on  the  part  of  the 
bailee  ;  as  if  cloth  be  delivered,  or, 
legally  speaking,  bailed  to  a  tailor  to 
make  a  suit  of  clothes,  he  has  it  upon 
an  implied  contract  to  render  it  again 
when  made  up,  and  that  in  a  workman- 
like manner.  Or,  if  money  or  goods  be 
delivered  to  a  carrier,  to  be  conveyed 
from  0  to  L,he  is  under  a  contract  in  law 
to  pay,  or  carry  them  to  the  person  ap- 
pointed. Or  if  a  debtor  bail  or  pawn, 
his  goods  to  his  creditor,  the  pawnee 
has  them  on  the  condition  of  restoring 


them  on  the  debt  being  discharged. 
Again,  if  a  friend  deliver  any  thing  to 
his  friend  to  keep  for  him,  the  receiver 
is  bound  to  restore  it  on  demand. 

18.  Bailees  have  in  certain  instances 
that  right  which  is  technically  called 
a  LIEN  in  respect  of  the  goods  com- 
mitted to  their  charge ;  that  is,  the 
right  of  retaining  the  possession  of  a 
chattel  from  the  owner  until  all  legal 
claims  upon  it  be  satisfied.  The  rule 
of  law  is,  that  every  person  to  whom 
a  chattel  has  been  delivered,  for  the 
purpose  of  bestowing  his  labor  upon 
it,  has  a  lien  thereon,  and  may  with- 
hold it  from  the  owner  (in  the  absence, 
at  least,  of  any  special  agreement  to 
the  contrary)  until  the  price  of  the 
labor  is  paid.  The  bailment  of  goods 
to  a  common  carrier  is  another  class. 
A  common  carrier  is  one  who  conveys 
the  goods  of  applicants  from  place  to 
place.  If  a  man  professes  to  be  a  car- 
rier, the  law  creates  for  him  a  duty  to 
receive  goods  brought  to  him  for  car- 
riage, and  he  is  bound  to  deliver  them 
safely,  and  within  a  reasonable  time, 
"  except  when  prevented  by  the  act  of 
God  or  of  the  King's  enemies."  A  car- 
rier is  not  liable  for  damage  arising 
from  any  inherent  defect  in  goods  de- 
livered to  him  for  conveyance  by  im- 
proper packing ;  nor  is  he  liable  for 


164 


PERSONAL   ESTATE  IK   ADMINISTRATION.  [CH.  VI. 


Collection  and  disposition  of 


for  allowance,  and  of  the  creditors,  and  oppose  his  claims  for  expenses 
and  commissions,  and  in  all  things  compel  a  proper  administration 
of  the  estate.  After  the  allowance  of  expenses,  award  to  the  widow 
and  children  and  of  claims,  if  the  personal  estate  be  insufficient  to 
pay  the  debts,  then  the  executor  or  administrator  is  to  proceed  in  rem 
against  the  real  estate  and  in  personam  against  the  devisees  or  heirs, 
to  whom  the  law  gives  the  real  property  subject  to  the  lien  of  the 
creditors  of  the  decedent,  and  convert  the  same  or  enough  of  it  to 
pay  the  debts  and  expenses  of  sale.  The  remainder  of  the  estate 
then  becomes  subject  to  the  will,  or  the  law  of  descent. 


leakage.     He  must,  however,  exercise 
due  skill  and  care. 

19.  HIRING  AND  BORROWING    are 
also   contracts  by   which  a  qualified 
property  may  be  transferred  to  the 
hirer  or  borrower.     They  are  both  con- 
tracts whereby  the  possession  and  a 
transient  property  is  transferred  for  a 
particular  time  or  use,  on  condition  to 
restore  the  goods  so  hired  or  borrowed 
as  soon  as  the  time  is  expired  or  use 
performed.      The   hirer   or  borrower 
gains   a  temporary   property  in    the 
thing,  with  an  implied  condition  "  to 
use  it  and  not  abuse  it,"  and  the  owner 
or  lender  retains  a  reversionary  inter- 
est in  the  same,  and  acquires  a  new 
property  in  the  price  or  reward. 

20.  THE  SUBJECT  OP  DEBT  is  closely 
connected  with  that  of   contract;    a 
debt  being  a  legal  relation  which  fre- 
quently arises  out  of  a  contract. 

A  debt  by  simple  contract  is  where 
the  contract  upon  which  the  obligation 
arises  is  neither  ascertained  by  matter 
of  record  nor  by  deed  or  special  in- 
strument. 

A  debt  by  specialty  is  where  a  sum 
of  money  becomes  due  by  deed  or  in- 
strument under  seal ;  that  is,  by  cove- 
nant, by  deed  of  sale,  or  by  bond  or 
obligation.  . 

A  debt  of  record  is  a  sum  of  money 
due  by  the  evidence  of  a  court  of 
record,  when  any  specific  sum  is  ad- 
judged to  be  due  from  the  defendant 
to  the  plaintiff  in  an  action  or  suit  at 
law. 

21.  A  BOND  is  a  deed  or  instrument 
under    seal,  where    the    party    from 
whom  a  security  is  intended  to  be 
taken  declares  himself  bound  to  pay 
a  certain  sum  of  money  to  another  on 


the  day  specified ;  but  there  is  a  condi- 
tion added,  that  if  the  obligor  does 
some  particular  act  the  obligation 
shall  be  void. 

22.  A  BILL  OF  EXCHANGE  is  a  nego- 
tiable instrument  or  security  used 
among  merchants  and  others  for  the 
more  easy  remittance  of  money  from 
one  country  to  another.  It  is  in  the 
form  of  an  open  letter  of  request 
from  A  to  B,  desiring  B  to  pay  a  sum 
named  therein  to  a  third  person  on  A's 
account,  by  which  means  a  man  at  the 
most  distant  part  of  the  world  may 
have  money  remitted  to  him  from  any 
trading  country.  Thus,  if  A  lives  in 
Jamaica,  and  owes  B,  who  lives  in 
New  YorK,  $1,000,  if  C  be  going  from 
New  York  to  Jamaica,  he  may  pay  B 
this  $1,000,  and  take  a  bill  of  ex- 
change, drawn  by  B  in  New  York, 
upon  A  in  Jamaica,  and  receive  it 
when  he  comes  thither.  Thus,  B  re- 
ceives his  debt  at  any  distance  of 
place,  by  transferring  it  to  C,  who  car- 
ries over  his  money  in  paper  credit, 
without  danger  of  robbery  or  loss. 
The  person  who  makes  the  bill  of  ex- 
change is  called  the  drawer ;  he  to 
whom  it  is  written  the  drawee,  and, 
after  acceptance  by  the  person  on 
whom  it  is-  drawn,  the  acceptor;  and 
the  third  person,  to  whom  it  is  pay- 
able, is  called  the  payee ;  and  the 
payee  may  indorse  it  to  any  other  per- 
son, who  becomes  the  payee  ;  and  thus 
it  may  be  transferred  to  twenty  per- 
sons or  more  before  it  arrives,  as  it  is 
called,  at  maturity. 

When  a  bill  of  exchange  has  been 
drawn,  accepted  and  indorsed,  the  per- 
son who  accepted  the  bill  is  primarily 
and  absolutely  liable  to  pay  it;  the 


CH.  VI.]  PERSONAL   ESTATE   IN   ADMINISTRATION. 


165 


By  the  executor  or  administrator. 


6.  SPECIAL  PROCEEDINGS.     To  divest  the  title  of  the  devisees  or 
heirs,  a  special  proceeding  in  the  nature  of  a  suit  in  chancery  is  pro- 
vided for.  (g)    For  the  purposes  of  his  trust  either  the  guardian  or 
conservator  also  may  need  to  apply  for  the  sale  of  real  property.     A 
similar  proceeding  is  provided  for  each  of  them.    These  proceedings 
will  be  disposed  of  in  the  next  chapter. 

7.  SCOPE  OF  THE  CHAPTER.      The  collecting,  inventorying,  ap- 
praisement, sale  and  management  of  the  personal  estate  pertain- 
ing to  their  respective  trusts  by  the  executor,  administrator,  guard- 
ian and  conservator,  are  the  subjects  immediately  before  us.     The 
executor  and  administrator  are  in  nearly  all  these  matters,  in  the 


(g)  The  personal  representative,  as  a 
general  thing,  has  no  control  over  the 
real  estate  of  the  deceased,except  where 
it  is  made  assets  for  the  payment  of 
debts,  and  then  only  to  the  extent  of 
the  excess  of  the  debts  above  the 
amount  of  personalty  applicable  to 
their  payment.  Dnnkwater  v.  Drink- 
water,  4  Mass.  354.  But  the  only  mode 
by  which  the  personal  representative 
can  appropriate  such  real  estate  or  the 
income  arising  from  it,  is  by  pursuing 
the  mode  pointed  out  in  the  statute, 
and  proceeding  under  an  order  of  sale. 
And  the  same  rule  obtains  in  most  of 
the  American  States.  Botsford  v. 
O'Conner,  57  111.  72. 

The  personal  representative  may 
always  recover  possession  of  all  effects 
in  the  hands  of  the  deceased  at  the 
time  of  his  death,  unless  the  defendant 
is  able  to  show  a  better  title  in  some 
other  party,  to  whom  he  will  be  liable 
to  account  for  the  same.  Reeves  v. 
Matthews,  17  Yerg.  449 ;  1  Redfield, 
p.  122. 

Chattels  real  go  to  the  executor  and 


administrator,  and  not  to  the  heir,  and 
this  includes  terms  for  years.  All 
mortgage  interests  due  to  the  estate 
are  regarded  as  mere  personalty.  See 
Sc.ott  v.  Moore,  3  Scam.  319 ;  Griffin  v. 
Marine  Co.,  52  111.  130;  R.  S.  1845,110, 
§  39  ;  id.  301,  §  1 ;  also  see  pp.  158, 159, 
supra. 

As  to  the  powers,  liabilities  and  du- 
ties of  the  administrator,  the  follow- 
ing decisions  in  Illinois  may  be  here 
considered  : 

The  court  knows  of  no  power  in  an 
administrator,  as  such,  to  loan  the 
money  of  the  estate.  If  he  does,  it  is 
on  his  own  responsibility,  and  makes 
him  liable  to  the  estate.  Thornton  v. 
Smiley,  Breese,  14. 

The  law  of  1825  (R.  L.  646)  author- 
ized  him  to  sell  and  assign  a  certificate 
of  purchase  of  land  made  by  deceased 
from  the  United  States,  on  which 
partial  payments  were  made,  and 
which  was  necessary  to  be  sold  to  pay 
debts.  Prevo  v.  Walters,  4  Scam.  37. 

One  of  two  executors  may  assign  a 
note  made  payable  to  the  testator,  so 


person  who  drew  it  is  liable  only  upon 
the  contingencies  of  default  being 
made  by  the  acceptor  and  of  the  holder, 
to  whom  it  may  have  been  indorsed, 
performing  certain  conditions  prece- 
dent to  his  right  of  suit  being  complete, 
viz. :  Presenting  the  bill,  and  giving 
due  notice  to  the  drawer  of  the  failure 
of  the  acceptor  to  pay  it  upon  present- 
ment. Payment  of  the  bill,  when  re- 
fused, must  be  demanded  of  the  drawer 
without  loss  of  time,  as  the  holder 
must  give  the  drawer  notice  thereof ; 
and  if  the  bill  has  passed  through 
many  hands  and  been  indorsed  by 


them,  the  last  holder,  by  giving  notice 
of  dishonor  without  loss  of  time  to  the 
indorsers,  is  at  liberty  to  call  on  any 
or  all  of  them  to  make  him  satisfac- 
tion, for  each  indorser  is  in  the  nature 
of  a  new  drawer,  and  is  a  warrantor 
for  the  payment  of  the  bill. 

23.  A  cheque  is  a  sort  of  an  inland 
bill  of  exchange  drawn  upon  a  banker, 
and  made  payable  to  the  bearer  or  order. 
The  banker  is  the  depositary  of  the  cus- 
tomer's money,  which  he,  in  compliance 
with  usage,  undertakes  to  pay  out  from 
time  to  time  to  the  customer's  order, 
evidenced  by  his  cheque.  The  holder 


166 


PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VI. 


Collection  and  disposition  of 


county  court  governed  by  the  same  rules  and  must  take  the  same 
steps  in  discharging  their  trusts.  There  are,  however,  some  things 
which  we  shall  point  out  wherein  the  executor  is  governed  by  rules 
which  have  no  application  to  the  administrator.  In  getting  the 
estate  into  their  hands  respectively,  the  same  proceedings  are  pre- 
scribed. 


as  to  transfer  the  legal  interest  to  the 
assignee.  Dwight  v.  Newell,  15  111. 
335.  So  can  an  administrator.  Make- 
peace v.  Moore,  5  Gilm.  476. 

So  a  term  of  years  passes  by  the  as- 
signment of  one  of  several  executors. 
A  sale  of  a  chattel  by  one  transfers  the 
title  to  a  purchaser.  Id.  335. 

In  absence  of  fraud,  a  purchaser  at 
an  administrator's  sale  must  not  only 
look  out  for  the  title,  but  the  quality. 
The  administrator  cannot  warrant  but 
on  his  personal  responsibility.  Bay  v. 
Virgin,  12  111.  218  ;  Burnap  v.  Dennis, 
3  Scam.  482. 

When  an  administrator  placed  notes 
of  his  intestate,  due  in  another  State, 
in  the  hands  of  an  agent  to  collect,  who 
was  a  man  of  means  at  that  time,  but, 
having  used  the  money,  failed :  held, 
the  administrator  was  not  liable  ;  he 
had  used  proper  diligence  and  ordi- 
nary care.  Christy  v.  McBride,  1 
Scam.  78.  The  court,  in  that  case, 


doubted  whether  the  administrator  is 
bound  to  collect  in  another  State. 

If  the  surviving  partner  fail  to  settle 
the  partnership  promptly  with  the  ad- 
ministrator of  the  deceased  partner , it  is 
the  duty  of  the  administrator  to  compel 
settlement  by  bill  in  equity,  enjoin 
the  surviving  partner,  receive  the  out- 
standing debts,  and  have  a  receiver 
appointed.  People  v.  White,  11  111. 
350. 

An  administrator  is  chargeable  with 
interest,  on  the  rule  that  the  trustee 
shall  take  no  advantage  to  himself  out 
of  the  trust  fund ;  the  profits  belong 
to  the  cestui  que  trust.  Rowan  v. 
Kirkpatrick,  14  111.  11.  So,  a  guard- 
ian who  converts  the  funds  of  his 
ward  to  his  own  use  is  chargeable  with 
compound  interest.  Id. 

If  an  administrator,  being  ordered, 
fail  to  pay  over  to  an  heir,  an  action 
accrues  on  his  bond.  Ralston  v.  Wood, 
15  111.  159.  See  pp.  80,  81,  supra. 


of  the  cheque  is  bound  to  present  it  for 
payment  on  the  day  after  that  on 
which  he  received  it ;  or  if  the  cheque 
be  on  a  banker  in  a  distant  town,  the 
holder  is  bound  to  send  it  for  present- 
ment the  following  day.  A  party 
holding  the  cheque  over  the  time 
specified,  loses  all  claim  against  the 
drawer,  in  the  event  of  the  failure  of 
the  bank. 

24.  A  PROMISSORY  NOTE,  or  note  of 
hand,  is  a  plain  and  direct  engagement 
in  writing  to  pay  a  sum  or  thing  speci- 
fied at  the  time  therein  mentioned  to  a 
person  therein  named,  or  to  his  order 
or  to  bearer.  There  are  but  two 
parties  to  such  instrument,  the  maker 
(drawer)  and  the  payee.  Like  bills  of 
exchange  in  case  of  non-payment  by 
the  maker,  the  last  holder  has  the 
same  remedy  upon  the  several  indors- 
ers,  observing  the  rules  of  notice,  as 
stated  in  respect  of  bills  of  exchange. 

An  ordinary  bank  note  is  a  promis- 


sory note,  payable  to  bearer  on  demand, 
passes  from  hand  to  hand  by  delivery, 
passes  in  currency  like  cash,  and  can- 
not be  impugned  upon  proof  that  the 
note  had,  before  coming  for  value  into 
his  hands,  been  stolen  from  its  right- 
ful owner.  R.  S.  1874,  pp.,  718-720. 

25.  A  POLICY  OF  INSURANCE  is  a  con- 
tract between  A  and  B,  that  when  A 
pays  a  premium  equivalent  to  the 
hazard  to  be  incurred,  B  will  indem- 
nify or  insure  him  against  a  particular 
event  then  expressed.  These  insur- 
ances are  either  life  policies,  insur- 
ances against  fire,  or  marine  insurances 
against  loss  or  damage  by  sea.  As  to 
life  policies,  it  is  Yield  that  no  in- 
surance shall  be  made  pn  lives  or  any 
other  event  wherein  the  party  insured 
hath  no  interest ;  and  that  in  all  poli- 
cies the  name  of  such  interested  party 
shall  be  inserted.  Life  insurances  are 
also  made  available  for  effecting  va- 
rious useful  objects,  such  as  making  a 
settlement  upon  marriage,  or  after- 


CH.  VI.]  PERSONAL   ESTATE   IK   ADMINISTRATION.  167 

By  the  executor  or  administrator. 

8.  INVENTORIES  AND  APPRAISEMENT.  Whenever  letters  testamen- 
tary, of  administration,  or  of  collection  are  granted,  the  executor  or 
administrator  shall  make  out  a  full  and  perfect  inventory  of  all  such 
real  and  personal  estate,  or  the  proceeds  thereof,  as  are  committed 
to  his  superintendence  and  management,  and  as  shall  come  to  his 
hands,  possession  or  knowledge,  describing  the  quantity,  situation 
and  title  of  the  real  estate,  and  particularly  specifying  the  nature 
and  amount  of  all  annuities,  rents,  goods,  chattels,  rights  and  credits 
and  money  on  hand,  and  whether  the  credits  are  good,  doubtful  or 
desperate  ;  which  said  inventory  shall  be  returned  to  the  office  of 
the  clerk  of  the  county  court  within  three  months  from  the  date  of 
the  letters  testamentary  or  of  administration,  (h) 

If,  after  making  the  first  inventory,  any  other  real  or  personal 
estate  of  the  deceased  come  to  his  possession  or  knowledge,  he  shall 
file  a  similar  additional  inventory  thereof,  (i) 

An  inventory  is  a  list,  schedule  or  enumeration  in  writing,  con- 
taining, article  by  article,  a  description  of  all  the  real  and  personal 
estate,  rights  and  credits  of  the  intestate,  (j)  In  many  instances,  the 
administrator  cannot,  from  want  of  knowledge,  make  an  inventory 

(K)  §  51,  R.  S.  1874,  p.  113.  (j)  Bouvier. 

(i)  §  52,  id. 

ward  insuring  a  provision   for  wife  hands.     In  dealing  with  such  property 

and  children.  he   has   a   broad,  general  discretion. 

26.  BOTTOMRY  is  in  the  nature  of  a  He  is  to  inventory  it,  cause  it  to  be 
mortgage  on  a  ship,  when  the  owner  appraised,  file  the  appraisement  bill, 
or  commander  borrows  money  to  en-  and  do  other  needful  acts,  and  report 
able  him  to  carry  on  his  voyage.     This  to  the  court,  as  will  be  more  fully  ex- 
security  is  called  a  bottomry  bond.  plained  further  on.(&) 

We  have  not,  in  this  note,  cited  the  This  discretion  is  that  CAREFUL 
authorities ;  the  principles  stated  un-  JUDGMENT  AND  DISCRIMINATION  OR 
derlie  the  whole  fabric  of  the  law  of  CARE  which  a  prudent  business  man 
personal  property.  They  are  funda-  is  presumed  to,  and  usually  does,  ex- 
mental  principles,  a  knowledge  of  ercise  over  like  property  in  its  man- 
which  is  essential  to  a  proper  dis-  agement  and  disposition, 
charge  of  the  trusts  involved  in  the  As  soon  as  the  personal  estate  is 
administration  of  such  property,  and  found  to  be  insufficient  to  pay  the 
are  stated  here  as  they  have  for  ages  debts  and  charges,  etc.,  application 
been  promulgated  by  the  sages  of  the  should  be  promptly  made  for  an  order 
law.  to  sell  the  real  property.  This  is 

27.  In  the  execution  of   his  trust,  treated  of  in  the  next  chapter.     The 
the  foregoing,  which  are  the  leading  real  property,  or  enough  of   it,  will 
principles   of    the   law  of    contracts,  then   be   under  the   direction  of   the 
will  afford  the  executor  or  administra-  court,  subjected  to  sale,  and  converted 
tor,  guardian  or  conservator,  a  general  into  assets  for  the   purposes  of   the 
knowledge  of  the  personal  estate  or  trust. 

assets  which  may  have   come  to  his 

(k)  see  pp.  169, 170,  Infra, 


PEBSONAL   ESTATE   IN   ADMINISTKATIOX.  [cfi.  VI. 

Collection  and  disposition  of 

of  all  the  property  belonging  to  the  deceased.  But  should  he  dis- 
cover afterward  any  other  property,  he  should  make  out  an  addi- 
tional inventory  or  account. 

Whether  the  intestate's  title  to  the  property  be  perfect  or  not,  it 
should  all  be  mentioned,  as  the  administrator  cannot  be  the  judge 
of  title.  All  real  property  to  which  the  intestate  had  an  apparent 
claim  should  be  included  in  the  list,  and  the  nature  of  such  claim 
carefully  and  fully  stated. 

It  is  also  the  duty  of  the  administrator  to  inventory  property 
fraudulently  concealed  by  the  intestate  ;(&)  all  mortgages  or  other 
securities  for  the  payment  of  money  or  property,  bonds,  notes,  con- 
tracts, judgments  ;  all  debts  on  account  or  otherwise,  stating  whether 
the  claims  be  good,  doubtful  or  desperate  ;  all  property  in  the  hands 
of  third  persons,  belonging  to  the  estate,  or  in  which  the  estate  is 
interested.  Moneys,  even  in  the  hands  of  the  wife,  and  carried  by 
her,  or  given  to  her  by  her  husband  before  his  death,  are  to  be  inven- 
toried. (I)  Where  debts  or  claims  for  money  are  listed,  the  amount 
and  nature  of  the  debt  should  be  stated  ;  also  the  name  of  the  per- 
son indebted.  He  will  be  obliged  to  show  good  cause  for  not  col- 
lecting the  debts  mentioned  to  be  due,  unless  he  had  precaution  to 
note  them  in  the  inventory  as  desperate  or  doubtful,  (m)  If  he 
mark  a  debt  doubtful  or  desperate,  it  will  devolve  on  the  creditor  or 
distributee  to  show  that  the  same  was  good  and  might  have  been 
collected.  In  the  inventory  of  real  estate  the  administrator  should 
particularly  describe  the  land,  as  stated  in  the  deed  or  other  evidence 
of  title  or  interest.  If  the  land  be  held  under  bond,  or  contract,  or 
otherwise,  it  should  be  so  stated.  If  a  debt  be  secured  by  mortgage  it 
should  be  so  stated,  and  the  land  or  chattels  described-mortgages, 
leases,  etc.,  should  be  inventoried.  If  a  party  administer  without 
making  an  inventory,  the  law  will  suppose  him  to  have  assets 
for  the  payment  of  all  the  debts  and  legacies,  unless  he  repel  the 
presumption.  Whereas,  if  he  make  an  inventory,  he  shall  not  be 
presumed  to  have  more  effects  of  the  deceased  than  are  comprised  in 
it,  and  the  proof  of  any  omission  is  then  thrown  on  the  opposite 
party,  (n)  Whether  the  presumption  of  assets,  where  no  inventory 
is  made,  would  be  held  to  be  the  law  here,  is  an  open  question.  The 
statute  requiring  the  inventory  would  lend  many  presumptions  against 

(k)  Andrus  v.  Doolittle,  11  Conn.  283.        (m)  2  Kent's  Com.  415. 
(1)  Wdshhurn  v.  Hale,  10  Pick.  429  ;        (n)  Toler  Law  Ex'rs,  250;  3  Hair.  & 
Rowan  v.  Kirkpatrick,  14  111.  13.  Johns.  373. 


CH.  VI.]  PERSONAL   ESTATE   IN"   ADMINISTRATION".  169 

By  the  executor  or  administrator. 

the  administrator  should  he  fail  to  comply  with  the  law  in  this 
respect. 

If  an  administrator  fail  to  make  out  his  inventory  as  required  by 
law,  the  judge  may  summon  or  cite  him  at  the  instance  of  a  party 
interested,  or,  it  seems,(o)  at  his  own  discretion,  to  show  cause  why 
he  should  not  file  his  inventory,  and  may  then  be  proceeded  against 
to  the  revocation  of  his  letters  of  administration.  If  he  do  not 
make  out  a  proper  inventory,  he  would  also  be  liable  upon  his 
bond.(j)) 

9.  CITATION  TO  EXHIBIT  INVENTORY  AND  ACCOUNT.  Any  person 
interested  in  an  estate,  whether  as  a  next  of  kin,  as  being  entitled  in 
distribution,  or  as  a  legatee  or  a  creditor,  may  call  upon  the  admin- 
istrator or  executor  who  has  become  the  legal  representative  of  the 
deceased  to  exhibit  an  inventory  of  the  estate  and  render  an  account 
of  his  administration. 

A  second  administrator  may  call  upon  the  original  administrator 
to  exhibit  an  inventory  and  account. 

An  inventory  may  be  called  for  at  any  period  after  administration 
is  due,  i.  e. ,  after  the  expiration  of  three  months. 

In  regard  to  the  account  after  three  months  also,  there  does  not 
appear  to  be  any  time  limited  before  which  that  may  not  be  called 
for.  The  citation  cannot  issue  until  an  affidavit  in  verification  of 
the  averments  which  it  contains  has  been  filed.  Disobedience  to  the 
citation  is  followed  by  attachment,  (q) 

APPLICATION  FOR  CITATION  TO  THE   ADMINISTRATOR,  TO  MAKE  AN  INVENTORY. 

STATE  OF  ILLINOIS,  )  County  Court  of  county, 

Cook  county.       )  8{  term,  A.  D.  18    . 

To  Hon.  E  F,  Judge  of  said  court : 

The  petition  of  E  F,  of  said  county,  respectfully  represents  that  your  peti- 
tioner is  security  on  the  bond  of  C  D,  administrator  of  A  B,  deceased,  as  by 
reference  to  said  administrator's  bond  will  appear.  That  letters  of  administra- 
tion were  issued  to  said  C  D,  on  the'  day  of  ,  A.  D.  18  ,  and  that  said 
C  D  has  failed  to  make  out  and  file  in  this  court  a  full  and  perfect  inventory  of 
the  real  and  personal  estate  of  the  said  intestate,  within  three  months  from  thu 
date  of  said  letters  of  administration  ;  and  your  petitioner  says  that  by  reason 
of  said  E  F's  neglect  to  file  such  inventory,  your  petitioner  is  in  great  danger 
of  being  wronged  thereby,  wherefore  he  prays  that  said  administrator  may  be 
cited  to  show  cause  why  he  should  not  file  such  inventory  in  this  court,  if  any 
he  has,  and  that  such  further  proceedings  be  had  thereon  as  may  be  consistent 

(o)  Toler  Ex'rs,  249.  (q)  See  p.  16,  supra, 

(p)  2  Kent's  Com.  415. 
22 


170  PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VI. 

Collection  and  disposition  of 

with  law  and  the  rights  of  your  petitioner.    And  your  petitioner  will  ever 
pray,  etc. 

E  F. 

STATE  OP  ILLINOIS,  ) 
county.     ) 

E  F,  being  sworn,  says,  that  the  matters  and  things  in  the  foregoing  petition 
are  true  of  his  own  knowledge  in  manner  and  form  as  therein  stated. 
(Jurat.) 

When  personal  property  of  any  kind,  or  assets,  shall  come  to  the 
possession  or  knowledge  of  the  administrator  after  the  making  out 
of  the  inventory  aforesaid,  and  the  appraisement  bill,  an  account  or 
inventory  of  the  same  is  to  be  returned  to  the  court,  appraised  as  in 
other  cases,  within  three  months  after  the  discovery  thereof,  (r) 

10.  FORM  OF  INVENTORY. 

The  inventory  of  real  and  personal  estate  of  A  B,  late  of  the  county  of 
and  State  of  ,  deceased,  intestate : 

REAL  ESTATE. 

North-west  quarter  section  6,  township  10  north,  7  east,  in 

county,  ,  160  acres  ;  lot  2,  block  1,  in  the  city  of  ,  Illi- 
nois, purchased  of  A  Pease,  homestead  and  farm  of  deceased, 
improved ;  value $5,000  00 

Title  bond  or  contract  for  deed,  to  south-half  section  10,  township 
8  north,  3  east,  county,  ,  made  by  ,  of  , 
Illinois,  to  deceased,  bearing  date  January  1, 18  ;  payment  of 
$500  due  on  same  January  1,  18  ,  when  the  deed  is  to  be 
made ;  unimproved  prairie  land  ;  value 1,000  00 

Lease  of  deceased  with  A  B,  for  south-west  quarter  of  south-east 
quarter  15  north,  3  east,  in  county,  ,  dated  April  1, 
1870,  for  two  years,  rent  payable  quarterly  in  advance  ;  accrued 
due  on  lease  since  intestate  died 50  00 

PERSONAL   ESTATE. 

Money  in  hand 1,500  00 

Judgment  against  Richard  Roe,  on  docket  of  superior  court,  Cook 

county,  ^with  interest  from  Jannary  1, 18      (doubtful) 560  00 

Due  on  lease  with  A  B  (good) 150  00 

NOTES,   CONTRACTS   AND   ACCOUNTS   (GOOD). 

E  F's  note,  dated  September  1,  1872,  due  January  1,  18     1,000  00 

G  H,  account 91  89 

(r)  %  52,  R.  S.  1874,  p.  113 ;  See  p.  169,  supra. 


CH.  VI.]  PEKSONAL   ESTATE   IX   ADMINISTKATIOiT.  171 

By  executor  or  administrator. 

NOTES,  CONTRACTS  AND  ACCOUNTS  (DOUBTFUL). 

Note  of  J  K,  June  1,  18     ,  due  on  demand $2,100  00 

Interest  two  years  and  two  months  (unpaid) 

L  M,  on  contract  with  said  intestate,  dated  August  1,  18     160  00 

NOTES,   CONTKACTS  AND   ACCOUNTS  (DESPERATE). 

Note  of  N  0,  dated  August  1, 18     ,  payable  January  1, 18    ,  with 
interest ;  indorsed  by  P  Q 1,590  60 

GOODS  AND  CHATTELS. 

One  bay  horse ;  one-third  of  twenty  acres  of  corn  growing  on  home  farm. 
The  foregoing  is  a  full  and  perfect  inventory  of  all  the  real  and  personal 
estate,  or  the  proceeds  thereof,  belonging  to  the  estate  of  the  said  A  B,  de- 
ceased, that  has  come  to  the  hands,  possession  or  knowledge  of  C  D, 

Administrator  of  John  Doe,  deceased. 
Dated  August  8, 18    . 

The  above  illustrates  the  form  of  the  inventory,  which  maybe 
varied  to  suit  any  state  of  facts;  and,  with  little  change,  may  be  used 
for  an  additional  inventory  if  one  should  be  requisite.  (5) 

11.  THE  APPKAISEMENT.  On  granting  letters  testamentary  or  of 
administration,  a  warrant  shall  issue,  under  the  seal  of  the  county 
court,  authorizing  three  persons  of  discretion,  not  related  to  the 
deceased,  nor  interested  in  the  administration  of  the  estate,  to  ap- 
praise the  goods,  chattels  and  personal  estate  of  the  deceased,  known 
to  them,  or  to  be  shown  by  the  executor  or  administrator ;  which 
warrant  shall  be  in  the  following  form,  to-wit: 

( Venue,  title,  etc.} 

"  The  people  of  the  State  of  Illinois  to  A  B,  G  D  and  E  F,  of  the  county  of 
and  State  of  Illinois,  greeting  : 

"  This  is  to  authorize  you,  jointly,  to  appraise  the  goods,  chattels  and  per- 
sonal estate  of  J  K,  late  of  the  county  of  and  State  of  Illinois,  deceased, 
so  far  as  the  same  shall  come  to  your  sight  and  knowledge ;  each  of  you  hav- 
ing first  taken  the  oath  (or  affirmation)  hereto  annexed  ;  a  certificate  whereof 
you  are  to  return,  annexed  to  an  appraisement  bill  of  said  goods,  chattels  and 
personal  estate  by  you  appraised,  in  dollars  and  cents ;  and  in  the  said  bill  of 
appraisement  you  are  to  set  down  in  a  column  or  columns,  opposite  to  each 
article  appraised,  the  value  thereof. 

"  Witness :  A  B,  clerk  of  the  county  court  of  county,  and  the  seal  of 

said  court,  this        day  of  ,  18     . 

[L.  s.]  A  B,  Clerk. 

And  on  the  death,  refusal  to  act,  or  neglect  of  any  such  appraiser, 
another  may  be  appointed  in  his  place. (t) 

(s)  See  p.  175.  infra.  (t)  §  53,  R.  S.  1874,  p.  114. 


172  PERSONAL  ESTATE   IX   ADMINISTRATION.  [CH.  VI. 

Collection  and  disposition  of 

The  appraisement  is  the  valuation  of  the  goods  and  chattels  of 
the  deceased  by  persons  appointed  by  the  court  for  that' purpose. 

The  appraisers,  before  they  proceed  to  the  appraisement  of  the 
estate,  shall  take  and  subscribe  the  following  oath  (or  affirmation), 
to  be  annexed  or  indorsed  on  the  said  warrant,  before  any  person 
authorized  to  administer  an  oath,  viz. : 

"  We,  and  each  of  us,  do  solemnly  swear  (or  affirm)  that  we  will  well  and 
truly,  without  partiality  or  prejudice,  value  and  appraise  the  goods,  chattels 
and  personal  estate  of  J  K,  deceased,  so  far  as  the  same  shall  come  to  our 
sight  and  knowledge,  and  that  we  will,  in  all  respects,  perform  our  duties  as 
appraisers  to  the  best  of  our  skill  and  judgment." 

After  which,  the  said  appraisers  shall  proceed,  as  soon  as  conven- 
iently may  be,  to  the  discharge  of  their  duty,  and  shall  set  down 
each  article,  with  the  value  thereof,  in  dollars  and  cents  as  afore- 
said. All  the  valuations  shall  be  set  down  on  the  right  hand  side  of 
the  paper  in  one  or  more  columns,  in  figures,  opposite  to  the  re- 
spective articles  of  property,  and  the  contents  of  each  column  shall 
be  cast  up  and  set  at  the  foot  of  the  respective  columns.(w) 

Give  a  specific  valuation  to  each  article  of  property  by  itself.  It  would  be 
incorrect  to  set  down  in  the  bill  two  or  more  articles  in  one  valuation,  e.  g., 
"  Wagon  and  harness,  $100,"  because  creditors  and  others  have  a  right  to 
know  what  the  wagon  itself  was  valued  at,  independent  of  the  harness.  But 
the  following  would  be  correct:  "Ten  hogs,  at  $5  each,  $50,"  because  such 
would  be  a  valuation  of  each  hog  as  well  as  all. 

There  are  no  well  defined  rules  to  guide  appraisers  in  fixing  the  just  and 
exact  valuation  of  the  property,  save  good,  sound  judgment,  enlightened  as  to 
the  quality  and  market  value  of  the  kinds  of  articles  to  be  appraised.  The 
law  provides  that  disinterested  persons  of  discretion  shall  be  appointed  ap- 
praisers. A  person  of  this  description  is  presumed  to  be  one  who  possesses 
that  discernment,  united  with  caution,  which  enables  him  to  judge  critically 
of  what  is  correct  and  proper. 

When  the  BILL  OF  APPRAISEMENT  is  completed,  the  appraisers  shall 
certify  the  same  under  their  hands  and  seals ;  and  shall  deliver  the 
same  into  the  hands  of  the  executor  or  administrator  to  be,  by  him. 
returned  into  the  office  of  the  clerk  of  the  county  court,  within 
three  months  from  the  date  of  his  letters.(v) 

If  the  appraisers  or  any  of  them  die,  or  neglect  to  act,  another 
warrant  may  issue  forthwith  for  other  appraisers. 

(u)  §  54,  R.  S.  1874,  p.  114.  («)  §  55,  id. 


OH.  VI.]  PERSONAL   ESTATE   IN   ADMINISTRATION.  173 

By  executor  or  administrator. 

12.    BILL    OF    APPRAISEMENT. 

Bill  of  appraisement  of  the  goods,  chattels  and  personal  estate  of  A  B,  late 
of  county,  Illinois,  deceased,  intestate. 

NO.  ARTICLES  APPRAISED.  VALUATION. 

1  Bay  horse $100  00 

1  Wagon 70  00 

1  Harness 15  00 

20  Shoats,  at  $1.25  each ' 25  00 


Amount  brought  down $210  00 

[On  next  page.] 

NO.  ARTICLES  APPRAISED.  VALUATION. 

Amount  brought  over ,  $210  00 

50  Bushels  corn  in  crib,  at  20  cents  per  bushel 10  00 

Undivided  one-third  of  20  acres  standing  corn 60  00 

Total  valuation $280  00 


CERTIFICATE. 

We,  the  undersigned  appraisers,  appointed  and  sworn  to  appraise  the  goods, 
chattels  and  personal  estate  of  A  B,  deceased,  do  hereby  certify  that  the  fore- 
going bill  of  appraisement  is  a  true,  correct  appraisement  of  the  several 
articles  of  goods,  chattels  and  personal  estate  of  the  said  intestate,  made  by 
us,  that  have  come  to  our  knowledge,  and  that  we  have  valued  the  same 
according  to  our  best  judgment. 
Witness  our  hands  and  seals,  this  day  of  ,  A.  D.  18  . 

•A  B.  [SEAL.]    } 

C  D.  [SEAL.]    >•  Appraisers. 

E   F.   [SEAL.]    ) 

(Here  annex  the  certificate  of  the  oath  and  the  appraisers'  warrant.) 
All  the  appraisers  should  sign  the  appraisement  bill  and  join  in 
making  the  appraisement.     An  appraisers'  fee  is  fixed  at  $2  per 
day.(w) 

13.  Inventories  and  bills  of  appraisement,  and  authenticated  copies 
thereof,  may  be  given  in  evidence  in  any  suit  by  or  against  the  execu- 
tor or  administrator,  but  shall  not  be  conclusive  for  or  against  him, 
if  any  other  testimony  be  given  that  the  estate  was  really  worth,  or 
was  bonafide  sold  for  more  or  less  than  the  appraised  value  there- 
ot(x) 

14.  ADDITIONAL  APPRAISEMENT.     "Whenever  personal  property  of 
any  kind,  or  assets,  shall  come  to  the  possession  or  knowledge  of  any 
executor  or  administrator,  which  are  not  included  in  the  first  bill  of 
appraisement  as  aforesaid,  the  same  shall  be  appraised  and  return 

(w)  §  59,  R.  S.  1874.  p.  114 ;  see  p.        (a?)  §  56,  id. 
174,  infra  ;  COSTS  AND  FEES,  infra. 


174  PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VL. 

Collection  and  disposition  of 

thereof  made  to  the  office  of  the  clerk  of  the  county  court,  in  like 
manner,  within  three  months  after  discovery  of  the  same.(?/) 

15.  Executors  and  administrators  shall  be  chargeable  with  so  much 
of  the  estate  of  the  decedent,  personal  or  real,  as  they,  after  due  and 
proper  diligence,  might  or  shall  receive,  (z) 

16.  Every  appraiser  appointed  under  this  act  shall  be  entitled  to  the 
sum  of  two  dollars  per  day  for  each  day's  necessary  attendance  in  mak- 
ing all  such  appraisements,  to  be  allowed  by  the  county  court,  and  paid 
upon  its  order  by  the  executor  or  administrator. 

17.  If  the  administrator  or  executor  of  an  estate  discover,  at  any 
time  after  the  inventory  and  appraisement  of  the  property  is  made, 
that  the  personal  property  and  assets  of  the  estate  do  not  exceed  the 
amount  of  the  widow's  allowance,  after  deducting  the  necessary  ex- 
penses incurred,  such  administrator  or  executor  shall  report  the  facts 
to  the  court,  and  if  the  court  find  the  report  to  be  true,  he  shall  order 
said  property  and  assets  to  be  delivered  to  the  widow  by  the  adminis- 
trator or  executor,  and  discharge  the  executor  or  administrator  from 
further  duty  ;  but  such  executor  or  administrator  shall  first  pay  out 
of  the  property  and  assets  the  costs  and  expenses  of  administration. 
After  the  court  orders  the  delivery  of  such  property  and  assets  to  the 
widow,  the  clerk  of  said  court  shall  make  and  deliver  to  her  a  certi- 
fied copy  of  the  order,  under  seal,  which  shall  vest  her  with  complete 
title  to  said  property  and  assets,  and  enable  her  to  sue  for  and  re- 
cover the  same  in  her  own  name  and  for  her  own  use.     Such  widow 
shall  not  be  liable  for  any  of  decedent's  debts  or  liabilities,  excepting 
the  funeral  expenses  of  the  deceased.     If,  upon  affidavit  being  filed 
with  the  clerk  of  said  court,  that  such  administrator  or  executor  fails 
or  refuses  to  report  in  any  case  provided  for  in  this  section,  the  court 
may  order  a  citation  and  attachment  to  issue  as  in  •  other  cases  of  a 
failure  of  administrators  to  report.     And  on  a  discovery  of  new 
assets,  administration  may  be  granted  as  in  other  cases,  and  charged 
to  the  account  of  the  estate,  (a) 

18.  COLLECTION  AND  DISPOSITION  OF  ASSETS.    If  any  executor  or 
administrator,  or  other  person  interested  in  any  estate,  shall  state 
upon  oath  to  any  county  court  that  he  believes  that  any  person  has 
in  possession,  or  has  concealed  or  embezzled,  any  goods,  chattels, 
moneys  or  effects,  books  of  account,  papers,  or  any  evidences  of  debt 

(!/)  §  57,  R.  S.  1874,  p.  114.  («)  §  59,  id 

(z)  §  58,  id. 


CH.  VI.]  PERSONAL   ESTATE   IN   ADMINISTRATION.  175 

By  executor  or  administrator. 

whatever,  or  titles  to  lands,  belonging  to  any  deceased  person  (or 
that  he  believes  that  any  person  has  any  knowledge  or  information 
of  or  concerning  any  indebtedness  or  evidence  of  indebtedness,  or 
property  titles  or  effects,  belonging  to  any  deceased  person,  which 
knowledge  or  information  is  necessary  to  the  recovery  of  the  same, 
by  suit  or  otherwise,  by  the  executor  or  administrator,  of  which  the 
executor  or  administrator  is  ignorant,  and  that  such  person  refuses 
to  give  to  the  executor  or  administrator  such  knowledge  or  informa- 
tion), the  court  shall  require  such  person  to  appear  before  it  by  cita- 
tion, and  may  examine  him  on  oath  and  hear  the  testimony  of  such 
executor  or  administrator,  and  other  evidence  offered  by  either  party, 
and  make  such  order  in  the  premises  as  the  case  may  require.(J) 

If  such  person  refuse  to  answer  such  proper  interrogatories  as 
may  be  propounded  to  him,  or  refuse  to  deliver  up  such  property  or 
effects,  or  in  case  the  same  has  been  converted,  the  proceeds  or  value 
thereof,  upon  a  requisition  being  made  for  that  purpose  by  an  order 
of  the  said  court,  such  court  may  commit  such  person  to  jail  until 
he  shall  comply  with  the  order  of  the  court  therein.(c) 

Upon  suggestion  made  by  an  executor  or  administrator,  to  the 
county  court,  that  any  claim,  debt  or  demand  whatever  belonging  to 
the  estate  in  his  hands  to  be  administered,  and  accruing  in  the  life- 
time of  the  decedent,  is  desperate  on  account  of  the  insolvency  or 
doubtful  solvency  of  the  person  or  persons  owing  the  same,  or  on 
account  of  the  debtor  having  availed  himself  of  the  bankrupt  law 
of  the  United  States,  or  on  account  of  some  legal  or  equitable 
defense  which  such  person  or  persons  may  allege  against  the  same, 
or  for  the  cause  that  the  smallness  of  such  claim,  debt  or  demand, 
and  the  difficulty  of  finding  the  debtors,  owing  to  the  remoteness  of 
their  residence,  or  such  executor's  or  administrator's  ignorance  of 
the  same,  the  said  court  may  order  such  claim,  debt  or  demand  to  be 
compounded  or  sold,  or  to  be  filed  in  the  said  court  for  the  benefit 
of  such  of  the  heirs,  devisees  or  creditors  of  such  decedent  as  will 
sue  for  and  recover  the  same,  giving  the  creditors  the  preference  if 
they  or  any  of  them  apply  for  the  same  before  the  final  settlement 
of  such  estate:  Provided,  that  no  order  for  the  sale  or  compound- 

(6)  §  80,  R    S.  1874,  pp.  118,  119.  (c)  %  81,  id. 


176  PERSONAL  ESTATE  IN  ADMINISTRATION.  [OH.  VL 

Collection  and  disposition  of 

ing  of  any  such  debts,  claims  or  demands,  or  any  of  them,  shall  be 
made  until  two  weeks'  public  notice*  shall  have  been  given  to  all 
whom  it  may  concern,  of  the  time  and  place  when  the  said  order 
will  be  applied  for,  which  notice  shall  be  given  by  the  administrator 
or  executor  in  a  newspaper  published  in  the  county  where  such  ap- 
plication is  to  be  made;  or  if  no  such  newspaper  is  published  in 
such  county,  then  by  posting  up  such  notices  in  not  less  than  three 
public  places  in  the  county,  of  which  one  shall  be  at  the  office  of 
the  clerk  of  the  county  court,  which  notice  shall  be  so  posted  at 
least  two  weeks  previous  to  the  time  of  said  application.  The  exec- 
utor or  administrator  shall  report  to  the  said  county  court,  for  its 
approval,  the  terms  upon  which  he  has  settled  or  disposed  of  any 
such  claim,  debt  or  demanded) 

And  if  such  claim  is  compounded  or  sold,  such  executor  or  ad- 
ministrator shall  be  chargeable  with  the  avails  of  such  compound- 
ing, and  if  the  same  is  taken  by  any  of  the  creditors,  heirs  or  devi- 
sees, he  or  they  may  maintain  an  action  for  the  recovery  thereof,  iii 
the  name  of  such  executor  or  administrator,  for  the  use  hereinafter 
mentioned ;  and  upon  recovering  the  same,  or  any  part  thereof,  he 
or  they  shall  be  chargeable  therewith,  after  deducting  his  claim  or 
distributive  share,  with  reasonable  compensation  for  collecting  the 
same ;  and  upon  such  suits  the  executor  or  administrator  shall  not 
be  liable  for  costs.(e) 

COUNTY  COURT  MAT  ORDER  DEBTS  COMPOUNDED.  The  county 
court  may  order  claims,  debts  and  demands,  due  at  so  remote  a  pe- 
riod as  to  prevent  their  collection  within  the  time  required  for  the 
final  settlement  of  estates,  and  the  collection  or  disposition  of  which 

(d)  %  82,  R.  S.  1874,  p.  119.  («)  §  83,  id. 

*  FORM  OF  NOTICE  OF  APPLICATION  TO  SELL  OR  COMPOUND  DESPERATE  CLAIMS. 
ADMINISTRATOR'S  NOTICE. 

To  da  whom  it  may  concern : 

Take  notice,  that  the  undersigned,  administrator  of  the  estate  of  C  D,  deceased, 
will  apply  to  the  county  court  of  county,  in  the  State  of  Illinois,  at  the  next 
term  thereof,  to  be  holden  in  the  court-house  in  ,  in  paid  county,  on  the  third 
Monday  of  next,  for  leave  to  compound  or  sell  all  the  desperate  claims,  debts  and 
demands  whatsoever  due  the  estate  of  the  said  C  D,  deceased,  which  accrued  in  hig 
life-time.  A  B,  Adrn'r. 

Dated, 

Proof  of  the  publication  or  posting  of  this  notice  should  be  made  the  same 
as  in  other  cases.  See  p.  51,  supra,  182,  infra. 

Before  such  notice  is  given,  the  administrator  should  properly  make  the 


CH.  VI.  J  PERSONAL  ESTATE   IN   ADMINISTRATION.  177 

By  the  executor  or  administrator. 

is  necessary  to  the  payment  of  the  debts  against  the  estate,  to  be 
compounded  or  sold  in  the  same  manner  and  upon  like  condition  as 
though  such  claims,  debts  or  demands  were  desperate  or  doubtful  : 
Provided,  that  no  such  claims,  debts  or  demands  shall  be  sold  or 
compounded  for  less  than  ten  per  cent  below  the  par  value  there- 


No  executor  or  administrator  shall,  without  the  order  of  the 
court,  remove  any  property  wherewith  he  is  charged,  by  virtue  of 
his  letters,  beyond  the  limits  of  this  State.  And  in  case  any  such 
executor  or  administrator  shall  remove  such  property  without  such 
order,  the  court  shall,  on  notice,  forthwith  revoke  his  letters  and 
appoint  a  successor,  and  cause  a  suit  to  be  instituted  on  his  bond, 
(/)§84,R.  8.1874,  p.  119. 

suggestion  to  the  court  mentioned  in  the  law,  that  the  persons  interested  may 
examine  the  schedule  of  such  debts  with  a  view  of  buying  or  otherwise. 
Such  suggestion  may  be  in  this  form  : 

SUGGESTION  OF  DESPERATE  DEBTS. 

STATE  OF  ILLINOIS,  I  „., 
County,     f88' 
To  A  B,  Judge  of  the  county  court  of         county,  Illinois: 

The  undersigned,  administrator  of  the  estate  of  C  D,  deceased,  suggests  and  makes 
known  to  the  court  here  that  the  following  claims,  debts  and  demands,  belonging  to 
the  estate  of  the  said  C  D,  deceased,  and  which  accrued  in  his  life-time,  are  desperate, 
for  the  reasons  here  stated,  to  wit  : 

Note  of  E  P,  dated  June  1,  1870,  due  on  demand  (debtor  insolvent),  for  ..........    $90  00 

Account  of  J  L  (debtor  absconded  and  gone  to  parts  unknown),  for  .............      20  00 

Account  of  O  P,  due  since  1850  (barred  by  statute  of  limitations,  which  the  un- 
dersigned is  assured  will  be  pleaded  against  it),  for  ..............................      36  20 

And  the  undersigned  states  that  he  has  made  all  necessary  efforts  to.  collect  said 
demands,  but  believes  legal  proceedings  would  be  unavailing,  and  that  the  interest  of 
the  estate  would  be  best  promoted  by  compounding  or  selling  them. 

AB, 
Administrator  of  C  £>,  deceased. 

This  "suggestion"  should  particularize  the  demands,  and  state  wherein 
they  are  desperate,  assigning  some  of  the  causes  mentioned  in  the  law. 

At  the  time  mentioned  in  the  notice,  the  administrator  should  apply  to  the 
court  for  an  order  to  compound  or  sell  the  demands  described  in  the  sugges- 
tion. He  should  first  file  the  proof  of  the  publication  or  posting  of  the 
notices.  The  following  short  form  may  be  used  : 

APPLICATION  TO  SELL  OK  COMPOUND  DESPERATE  DEMANDS. 

STATE  OF  ILLINOIS,  I  County  Court  nf         county. 

County,     f88'  term,  A.  D.  18    . 

To  Hon.          ,  Judge  of  said  court  : 

The  undersigned,  administrator  of  the  estate  of  C  D,  late  of  said  county,  deceased, 
shows  to  your  honor  that  he  has  given  notice  of  his  inter  ded  application,  to  the  court, 

23 


178  PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VI. 

Collection  and  disposition  of 

against  him  and  his  security,  for  the  use  of  the  persons  interested  in 
the  estate ;  and  if  it  shall  appear,  upon  the  trial  of  such  cause,  that 
the  executor  or  administrator  has  so  removed  such  property,  judg- 
ment shall  be  rendered  against  the  offender  and  his  securities  for 
the  full  value  thereof,  and  such  other  damages  as  the  parties  inter- 
ested may  have  sustained  by  reason  thereof,  (g] 

PARTNERSHIP  ESTATE.  In  case  of  the  death  of  one  partner,  the 
surviving  partner  or  partners  shall  proceed  .to  make  a  full,  true  and 
complete  inventory  of  the  estate  of  the  copartnership  within  his 
knowledge,  and  shall  also  make  a  full,  true  and  complete  list  of  all 
the  liabilities  thereof  at  the  time  of  the  death  of  the  deceased  part- 
ner. He  or  they  shall  cause  the  said  estate  to  be  appraised  in  like 
manner  as  the  individual  property  of  a  deceased  person. (A) 

(g)  §  85,  R.  S.  1874,  pp.  119,  120.  (A)  g  86,  id. 

at  this  term,  for  an  order  to  sell  or  compound  all  desperate  claims,  debts  and  demands 
belonging  to  the  estate  of  said  C  D,  deceased,  as  will  appear  by  the  publication  of  said 
notice,  proof  whereof  is  herewith  filed.  Wherefore,  the  administrator  prays  that  all 
the  said  debts,  claims  and  demands,  mentioned  in  the  said  schedule  and  "sugges- 
tions," heretofore  filed  in  this  court,  be  sold  according  to  the  statute  in  such  case 
made  and  provided,  except  the  said  note  of  E  F,  which  the  undersigned  prays  leave 
to  compound  with  said  E  "F.  A  B, 

Administrator  of  C  D,  deceased. 

Upon  this  application,  the  court  will  order  the  compounding  or  sale  of 
the  desperate  claims,  as  the  court,  under  the  peculiar  circumstances  of  the 
case,  may  deem  most  beneficial  to  the  estate.  The  statute  is  silent  as  to 
the  mode  of  selling,  whether  it  be  at  private  or  public  sale.  An  administrator 
may  pass  the  legal  interest  of  a  note  belonging  to  the  intestate's  estate,  by  in- 
dorsing the  same  as  a  person  in  his  private  capacity,  and  such  transfer  will 
enable  the  holder  of  it  to  sue  on  the  same  in  his  own  name.  If  the  sale  be  a 
public  one,  which  would  probably  be  the  correct  mode,  the  usual  notice  of  the 
time  and  place  of  such  sale  should  be  given,  as  in  other  cases,  by  posting.  The 
order  of  the  court  should  direct  the  manner  of  sale.  In  compounding  claims,  the 
administrator  should  exercise  his  discretion,  and  settle  on  the  best  terms  he  can 
secure.  If  an  administrator  should  return  a  collectible  claim  as  desperate,  and 
corruptly  compound  the  same  with  the  debtor,  he  would  undoubtedly  be  liable 
to  the  amount  of  damages  thereby  done  to  the  estate  which  he  represents.  He 
should  deal  in  the  same  way  for  those  for  whom  he  is  acting,  as  a  reasonable, 
business-like  man  would  do  for  himself,  if  he  would  exonerate  himself  from 
all  liability  ;  no  other  course  would  be  honest  or  safe. 

After  the  administrator  has  sold  and  compounded  all  such  claims,  he  is  re- 
quired to  report  to  the  court,  for  approval,  the  terms  upon  which  he  has  set- 
tled or  disposed  of  such  claims,  debts  or  demands. 


CH.  VI.  j  PERSONAL   ESTATE   IN   ADMINISTRATION.  179 

By  the  executor  or  administrator. 

He  or  they  shall  return,  under  oath,  such  inventory,  list  of  liabil- 
ities and  appraisement,  within  sixty  days  after  the  death  of  the 
copartner,  to  the  county  court  of  the  county  of  which  the  deceased 
was  a  resident  or  carried  on  the  partnership  business  at  the  time  of 
his  death ;  if  the  deceased  shall  have  been  a  non-resident,  then  such 
return  shall  be  made  to  the  county  court  granting  administration 
upon  the  effects  of  the  deceased.  Upon  neglect  or  refusal  to  make 
such  return,  he  shall,  after  citation,  be  liable  to  attachment,  (i) 

Such  surviving  partner  or  partners  shall  have  the  right  to  continue 
in  possession  of  the  effects  of  the  partnership,  pay  its  debts  out  of 
the  same,  and  settle  its  business,  but  shall  proceed  thereto  without 
delay,  and  shall  account  with  the  executor  or  administrator,  and  pay 
over  such  balances  as  may,  from  time  to  time,  be  payable  to  him  in 
the  right  of  his  testator  or  intestate.  Upon  the  application  of  the 
executor  or  administrator,  the  county  court  may,  whenever  it  may 
appear  necessary,  order  such  surviving  partner  to  render  an  account  to 
(t)§87,  R.  S.  1874,  p.  120. 

REPORT  OF  SALE  OF  DESPERATE  CLAIMS. 

STATE  OF  ILLINOIS,  I     .  County  Court  of  county, 

County,     f88  term,  18    . 

To  the  Honor-able  the  Judge  of  said  court :  • 

The  undersigned,  administrator  of  C  D,  deceased,  respectfully  submits  the  following 
report  of  the  sale  and  compounding  of  the  desperate  claims,  debts  and  demands 
belonging  to  the  estate  of  said  C  D,  made  in  pursuance  of  the  order  of  this  court  at  the 
term  thereof : 

That  he  succeeded  in  settling  with  E  "F,  and  obtained  the  amount  on  his 
note  upon  discounting  the  interest  of $7500 

That  after  giving  the  notice  required  in  said  order  (as  per  proof  herewith 
filed),  he  sold  the  following  claims,  as  here  stated : 

Account  of  JL,  $13.75,  to  L  M,  for 6  00 

Account  of  O  P,  $36.20,  to  B  C,  for 20  00 


Total  amount  received  for  desperate  claims $100  00 


That  he  could  obtain  no  bid  for  I  P's  account  of  $28,  and  he  herewith  returns  the 
same  into  court. 

A  B, 

Administrator  of  C  D,  deceased. 
Dated  ,18    . 

If  the  court  be  satisfied  with  the  report,  it  will  order  the  same  approved,  and 
charge  the  administrator  with  the  amount  so  received  by  him. 

If  such  claims  are  taken  by  the  heirs  or  creditors,  they  are  authorized  by  the 
statute  to  sue  on  them,  in  the  name  of  the  administrator,  for  their  use.  If  an 
administrator  sells  an  account  or  other  indebtedness,  not  negotiable,  it  is  pre- 
sumed that  the  person  buying  may  maintain  an  action  for  the  recovery  of  the 
amount  due  on  the  same. 


180  PERSONAL   ESTATE   IN  ADMINISTRATION.  [CH.  VL 

Collection  and  disposition  of 

said  county  court,  and  in  case  of  neglect  or  refusal,  may,  after  cita- 
tion, compel  the  rendition  of  such  account  by  attachment.(j) 

Upon  the  committal  of  waste  by  the  surviving  partner  or  partners, 
the  court  may,  upon  proper  application,  under  oath,  setting  forth 
specifically  the  facts  and  circumstances  relied  on,  protect  the  estate 
of  the  deceased  partner,  by  citing  forthwith  the  surviving  partner  or 
partners  to  give  security  for  the  faithful  settlement  of  the  affairs  of 
the  copartnership,  and  for  his  accounting  for  and  paying  over  to  the 
executor  or  administrator  of  the  deceased  whatever  shall  be  found  to 
be  due,  after  paying  partnership  debts  and  costs  of  settlement,  within 
such  time  as  shall  be  fixed  by  the  court  ;  the  giving  of  such  security 
may  be  enforced  by  attachment,  or  upon  refusal  to  give  such  secur- 
ity, the  court  may  appoint  a  receiver  of  the  partnership  property 
and  effects,  with  like  powers  and  duties  of  receivers  in  courts  of 
chancery  ;  the  costs  of  proceedings  under  this  section  to  be  paid  by 
the  executor  or  administrator,  out  of  the  estate  of  the  deceased  or 
surviving  partner,  or  partly  by  each,  as  the  court  may  order.  (&) 

19.  SALE  OF  PERSONAL  PROPERTY.  When  it  is  necessary  for  the 
proper  administration  of  the  estate,  the  executor  or  administrator 
shall,  as  soon  as  convenient,  after  making  the  inventory  and  appraise- 
ment, sell  at  public  sale  all  the  personal  property,  goods  and  chattels 
of  the  decedent,  when  ordered  to  do  so  by  the  county  court  (not 
reserved  to  the  widow,  or  included  in  specific  legacies  and  bequests, 
when  the  sale  of  such  legacies  and  bequests  is  not  necessary  to  pay 
debts),  upon  giving  three  weeks'  notice*  of  the  time  and  place  of 
such  sale,  by  at  least  four  advertisements,  set  up  in  the  most  public 
places  in  the  county  where  the  sale  is  to  be  made,  or  by  inserting  an 
advertisement  in  some  newspaper  published  in  the  county  where  the 
sale  is  to  be  made,  at  least  four  weeks  successively,  previous  thereto. 
The  sale  may  be  upon  a  credit  of  not  less  than  six  nor  more  than 
twelve  months'  time,  by  taking  notes  with  good  security  of  the  pur- 
chasers at  such  sale.  The  sale  may  be  for  all  cash,  or  part  cash  and 
part  on  time.  Provided,  that  any  part  or  all  of  such  personal  prop- 
erty may,  where  BO  directed  by  the  court,  be  sold  at  private  sale.(/) 

If  any  testator  directs  that  his  estate  shall  not  be  sold,  the  same 
shall  be  preserved  in  kind,  and  distributed  accordingly,  unless  such 

88,  R.  S.  1874,  p.  120.  (I)  %  90,  id.  ;  act  Feb.  9,  1874. 


(j)  % 
(&)§ 


*  See  note  on  page  181,  infra. 


CH.  VI.]  PERSONAL  ESTATE   IN"   ADMINISTRATION.  181 

By  the  executor  or  administrator. 

Bale  become  absolutely  necessary  for  the  payment  of  the  debts  and 
charges  against  the  estate  of  such  testator,  (m) 

If  the  sale  of  the  personal  property  be  not  necessary  for  the  pay- 
ment of  debts,  or  legacies,  or  the  proper  distribution  of  the  effects  of 
the  estate,  the  court  may  order  that  the  property  be  preserved  and 
distributed  in  kind.(w) 

If  any  executor  or  administrator  be  of  opinion  that  it  would  be  of 
advantage  to  the  estate  of  the  decedent  to  dispose  of  the  crop 
growing,  and  not  devised  at  the  time  of  his  decease,  the  same  shall 
be  inventoried,  appraised  and  sold,  in  like  manner  as  other  personal 
property ;  but  the  executor  or  administrator  may,  if  he  believe  it 
would  be  of  more  advantage  to  the  estate,  cultivate  such  crop  to 
maturity,  and  the  proceeds  of  such  crop,  after  deducting  all  necessary 
expenses  for  cultivating,  gathering  and  making  sale  of  the  same, 
shall  be  assets  in  his  hands,  and  subject  to  the  payment  of  debts  and 
legacies,  and  to  distribution  as  aforesaid.  (0) 

In  all  public  sales  of  such  property,  the  executor  or  administrator 
may  employ  necessary  clerks,  and  a  crier,  who  shall  be  allowed  such 
compensation,  not  exceeding  three  dollars  per  day,  as  the  court  may 
deem  reasonable,  to  be  paid  by  such  executor  or  administrator,  and 
charged  to  the  estate.  All  such  sales  shall  be  made  between  the 
hours  of  ten  o'clock  in  the  forenoon  and  five  o'clock  in  the  afternoon 
of  each  day ;  and  any  sale  made  before  or  after  the  time  herein 
limited  shall  be  voidable  at  the  instance  of  heirs,  devisees  or  cred- 
itors prejudiced  thereby.* (p) 

All  executors  and  administrators  shall,  immediately  after  making 
such  sales,  make,  or  cause  to  be  made,  a  bill  of  the  sales  of  said 
estate,  under  oath,  describing  particularly  each  article  of  property 

(m)  §  91,  R.  S.  1874,  p.  121.  (o)  §  93,  id. 

(ri)  §  92,  id.  (p)  %  94,  id. 

*  The  first  step  is  to  give  the  notice  required  by  law.  The  following  form 
may  be  used : 

NOTICE  or  ADMINISTRATOR'S  SAM. 
Administrator's  Sale. 

Notice  is  hereby  given  that  the  undersigned,  administrator  of  C  D,  deceased,  will,  on 
the  day  of  ,  A.  D.  18  ,  between  the  hours  of  10  o'clock,  A.  M.,  and  5  o'clock, 

p.  M.,  of  said  day,  sell  at  public  sale,  on  the  premises  lately  occupied  by  said  decedent, 
in  the  town  of  ,  county  of  ,  all  the  personal  property,  goods  and  chattels 

belonging  to  the  estate  of  the  said  deceased,  consisting  of  horses,  hogs,  etc.  (the  prop- 
erty for  sale  should  be  specifically  described),  upon  a  credit  of  months  ;  purchasers 
giving  notes  and  approved  security  for  all  sums  of  five  dollars  and  upwards ;  cash  in 


1854  *'£RSONAL   ESTATE   1ST   ADMINISTRATION.  LOH'  VL 

Collection  and  disposition  of 

sold,  to  whom  sold,  and  at  what  price  ;(q)  which  sale  bill,  when  thus 
made  and  certified  by  the  clerk  of  such  sale  and  the  crier  thereof,  if 
any  such  were  employed,  as  true  and  correct,  shall  be  returned  into 

(y)§95,  R.  S.  1874,  p.  121. 

(q)  The  sale  being  a  public  one,  where  all  persons  competent  to  make  con- 
tracts may  become  purchasers,  each  article  by  itself  should  be  put  up,  and  sold 
to  the  highest  bidder  who  can  comply  with  the  terms  of  the  sale.  All  sales 
made  before  10  o'clock,  A.  M.,  and  after  5  o'clock,  p.  M. ,  are  voidable.  The 
crier  is  the  agent  of  the  administrator  in  selling,  and  also  of  the  purchaser  in 
buying  ;  so,  if  the  crier,  in  selling,  make  false  and  fraudulent  representations, 
they  will  be  taken  as  the  fraud  of  the  administrator. 

In  an  action  on  a  note  given  for  goods  bought  at  an  administrator's  sale,  it 
was  held  that  the  purchaser  may  show,  in  defense  to  the  note,  that  the  admin- 
istrator, knowing  the  contrary,  fraudulently  represented  the  goods  to  be  sound.  • 
ll«y  v.  Virgin,  12  111.  216. 

The  administrator  cannot  sell  any  of  the  property  of  the  deceased  at  private 
sale.  Buniap  v.  Dennis,  3  Scam.  481.  Nor  can  he  delegate  his  power  to  sell; 
he  must  himself  be  present  to  direct  and  control.  Kellogg  v.  Wilson,  89  111.  357. 
If  an  administrator  purchases  the  goods  of  the  deceased  at  a  public  sale  at 

hand  for  all  sums  under  five  dollars.  No  property  to  be  removed  until  the  terms  of 
the  sale  are  complied  with. 

A  B, 

Administrator  of  ,  deceased. 

Dated  ,18    . 

If  posted,  there  must  be  at  least  four  copies  put  up  in  the  most  public  places 
in  the  county.  The  administrator  should  keep  a  copy  of  the  notice,  upon 
which  should  be  indorsed  his  affidavit  of  posting,  and  returned  with  the  sale 
bill.  The  following  form  of  an  affidavit  may  be  used  for  this  purpose : 

AFFIDAVIT  OF  POSTING  NOTICES. 

STATE  OF  ILLINOIS,  I 

County.      fw 

A  B,  administrator  of  ,  deceased,  being  sworn,  says,  that  on  the  day  of 

,  instant,  he  posted  four  notices,  of  which  the  within  (or  foregoing)  is  a  copy,  at 

the  following  places,  the  same  being  the  most  public  places  in  said  county,  viz. :  one 

at  the  court-house  in          ,  one  at          ,  in  the  town  of          ,  one  at          ,  in  the  town 

of          ,  and  one  at          ,  in  the  town  of 

A  B. 
(Jurat.) 

If  the  notice  be  published  in  a  newspaper,  the  certificate  of  the  publisher 
that  the  same  was  inserted,  stating  the  facts,  attached  to  the  notice,  will  be 
sufficient  evidence  of  publication.  See  p.  51,  supra. 

The  advertisement  is  the  process  upon  which  the  administrator  makes  the 
sale  of  the  intestate's  property.  It  should  specify  the  time, place  and  terms  of 
the  sale,  with  legal  certainty. 


CH.  VI.J  PERSONAL   ESTATE   IN   ADMINISTRATION.  183 

By  the  executor  or  administrator. 

the  office  of  the  clerk  of  the  county  court  in  the  like  time  as  is 
required  in  cases  of  inventories  and  appraisements.*(r) 
(r)  §  95,  R.  S.  1874,  p.  121. 

a  less  price  than  their  appraised  value,  he  will  be  accountable  for  the  differ- 
ence. Q-riswold  v.  Chandler,  5  N.  H.  492. 

Public  sale  is  one  made  by  auction  to  the  highest  bidder,  and  is  not  in  gen- 
eral subject  to  all  the  rules  of  other  sales;  for  example, there  is  no  warranty 
of  title  of  personal  property,  either  express  or  implied.  Bouvier. 

A  bidding  at  an  auction  may  be  retracted  before  the  hammer  is  down  ;  it  is 
not  binding  upon  either  party  till  assented  to.  2  Kent's  Com.  537. 

The  sale  should  be  conducted  fairly.  The  estate  is  not  liable  on  a  warranty 
made  by  the  administrator,  in  general,  though  the  administrator  may  be  per- 
sonally liable.  There  is  no  implied  warranty  of  title  in  sales  made  by  ad- 
ministrators. 2  Harr.  &  Gil.  176. 

The  rule  of  caveat  emptor  is  strictly  applicable  to  sales  by  administrators. 
In  the  absence  of  fraud,  the  purchaser  at  such  sales  must  not  only  look  out  for 
the  title  of  the  property,  but  for  the  quality  of  the  article  which  he  purchases. 
12  111.  216  ;  15  id.  294.  A  purchaser  at  the  sale  buys  at  his  own  risk  as  to  title 
and  quality  of  property. 

If  there  be  no  bidders  (and  perhaps  on  the  sound  discretion  of  the  admin- 
istrator), the  sale  may  be  postponed.  The  statute  is  silent  in  regard  to  such 
postponement ;  but  it  is  presumed  the  law  would  admit  of  and  justify  it  where 
it  is  best  for  the  interests  of  the  estate.  Notice  of  the  postponed  sale  should 
be  co-extensive  with  the  original  notices  as  to  the  posting  and  publication. 

Immediately  after  the  sale,  the  administrator  should  make,  or  cause  to  be 
made,  a  bill  of  the  sales  of  said  personal  estate,  the  truth  and  correctness  of 
which  is  to  be  certified  to  by  the  clerk  and  crier. 

*BILL  OF  SALE. 

A  bill  of  the  sales  of  goods,  chattels  and  personal  estate  of  A  B,  late  of  the  county 
of  ,  Illinois,  deceased,  made  on  the  day  of  ,  A.  D.  18  ,  in  pursuance  of 
notice  thereof,  a  copy  of  which  is  hereto  attached. 


NO. 

ARTICLES    SOLD. 

TO  WHOM  SOLD. 

FOB  WHAT 
PRICE. 

1 

Two-horse  wagon  

James  Godard  

$80  00 

1 

do        do     

10  00 

90 

Hogs,  at  $1.50  each  

Joseph  Farmer  

30  00 

10 

Acres  of  wheat,  standing  

do        do       

3500 

Total  amount  of  sales $14500 

We,  the  undersigned,  clerk  and  crier  at  the  said  sale,  do  hereby  certify  that  the 
foregoing  is  a  true  and  correct  bill  of  the  sales  of  the  goods  and  chattels  of  the  said 
A  B,  made  on  the  day  and  year  first  aforesaid. 
Witness  our  hands  and  seals,  the       day  of          ,  A.  D.  18    . 

E  F,  Clerk,    [SEAL.] 
G  H,  Orier.    [SEAL.! 

In  the  sale  bill,  as  in  the  appraisement  bill,  each  article  is  to  be  specifically 


184  PERSONAL   ESTATE   IN   ADMINISTRATION.  [CH.  VI. 

In  the  hands  of  guardians  or  conservators. 


SECTION  II.  —  IN  THE  HANDS  OF  GUARDIANS  OR  CONSERVATORS. 

1.  The  guardian  to  return  an  inventory  within  sixty  days  after  his  appoint- 

ment, and  additional  inventory. 

2.  Contents  of  inventory. 

3.  Form  of  inventory. 

4.  Conservators  are  required  to  do  the  like. 

1.  INVENTORY  TO  BE  RETURNED.    The  guardian  shall,  within  sixty 
days  after  his  appointment,  or  if  the  court  is  not  in  session  at  the 
expiration  of  that  time,  at  the  next  term  thereafter,  return  to  the 
court  a  true  and  perfect  inventory  of  the  real  and  personal  estate  of 
the  ward,  signed  by  him  and  verified  by  his  affidavit.    As  often  as 
other  estate  shall  thereafter  come  to  his  knowledge,  he  shall  return 
an  inventory  thereof,  within  sixty  days  from  the  time  the  same  shall 
come  to  his  knowledge's) 

2.  CONTENTS  OF  INVENTORY.    The  inventory  shall  describe  the 
real  estate,  its  probable  value  and  rental,  and  state  whether  the  same 
is  incumbered,  and,  if  incumbered,  how  and  for  how  much ;  what 
amount  of  money  is  on  hand ;  and  contain  a  list  of  all  personal 
property  including  annuities  and  credits  of  the  ward,  designating 
them  as  "good,"  "doubtful,"  or  "desperate,"  as  the  case  may  be.(^) 

(«)  §  12,  R.  S.  1874,  p.  560.  (t)  %  13,  id. 

described,  and  not  grouped  with  others,  as,  "  a  covered  buggy  and  harness," 
for  the  buggy  is  to  be  sold  by  itself,  and  the  name  of  the  person  to  whom  sold, 
and  the  price  for  which  it  sold,  set  opposite  ;  and  so  of  the  harness.  Persons 
interested  in  the  estate  have  a  right  to  know,  from  the  sale  bill,  what  each 
individual  article  was  sold  for.  It  is  questionable  whether  hogs  can  be  sold  in 
a  drove,  even  on  a  bid  of  so  much  for  each  hog,  taking  the  lot.  The  whole  of 
the  personal  estate  might,  with  equal  propriety  in  law,  be  sold  en  masse,  as 
hogs  by  the  drove.  A  field  of  growing  wheat,  consisting  of  ten  acres,  might, 
with  propriety,  be  sold  as  an  entirety,  while  it  would  be  doubtful  whether 
three  distinct  fields  of  wheat  could  be  put  up  at  once  and  included  in  one  sale. 
The  interests  of  the  creditors  and  heirs  might  be  seriously  affected  by  such 
sales  en  masse.  Each  article  of  personal  property  should  be  put  up,  sold  and 
entered  in  the  sale  bill  separately,  unless  one  person  should  purchase  several 
of  the  same  kind  of  articles  in  succession,  then  it  might  be  convenient  to 
enter  them  as  illustrated  in  the  foregoing  form  of  sale  bill,  as, "  20  hogs  at 
$1.50  each,  to  Joseph  Farmer,  $30." 

When  the  bill  of  sale  is  made  out  as  aforesaid,  the  notice,  with  affidavit  of 
posting  (or  proof  of  publication),  should  be  attached  to  it,  and  returned  within 
three  months  to  the  court. 


CH.  VI.]  PERSONAL  ESTATE   IN   ADMINISTRATION.  185 

In  the  hands  of  guardians  or  conservators. 
The  following  may  be  used  as  a  form  for  such  inventory  : 
3.  GUARDIAN'S  INVENTORY. 

An  inventory  of  the  estate,  real  and  personal,  belonging  to  C  A  D,  a  minor  of 
the  county  of  ,  and  State  of  Illinois. 

ARTICLES.  VALUATION. 

Money  received  of  J  K,  administrator  of  T  F  D,  deceased $500  00 

4  Horses  of  the  value  of  $100  each 400  00 

1  Wagon,  of  the  value  of 80  00 

160  acres  of  land,  being  N.  E.  qr.  of  sec.  10,  T.  11  N.,  R  3.  E.,  of  the 

value  of 1,000  00 

Undivided  two-thirds  of  80  acres  of  land,  being  S.  hf.  of  N.  W.  qr. 

of  sec.  10,  T.  11  N.,  R.  3  E.,  said  share  is  worth 600  00 

Amount  due  on  lease  of  said  first  described  land  made  by  T  F  D  in 

his  life-time,  to  R  S. .  65  00 


Total $2,645  00 


STATE  OP  ILLINOIS,  ) 

County,     y  " 

I,  E  B  M,  guardian  of  the  said  C  A  D,  do  certify  that  the  foregoing  is  a  true 
and  perfect  inventory  of  all  the  real  and  personal  estate,  goods,  chattels  and 
effects  belonging  to  the  said  C  A  D,  so  far  as  the  same  have  come  to  my  pos- 
session and  knowledge,  and  that  I  believe  the  foregoing  to  be  a  fair  and  just 
valuation  of  the  same. 

June  1,  187  .  E  B  M, 

Ghiardian  of  0  A  D. 

4.  CONSERVATORS  are  to  do  the  same  thing  in  like  manner.(w) 

(«)  See  p.  138  supra. 
24 


186  REAL   ESTATE   IN   ADMINISTRATION.  [CH.  VII 

Through  the  executor. 

CHAPTER  VII. 

REAL   ESTATE    IN   ADMINISTRATION. 

SECTION    I.  Through  the  executor. 

II.  Through  the  administrator. 

III.  Through  the  guardian. 

IV.  Through  the  conservator. 


SECTION  I.  —  ADMINISTRATION   OVER    REAL    ESTATE    THROUGH   THE 

EXECUTOR. 

1.  Power  of  executor  to  sell  land  valid,  if  given  in  the  will. 

2.  Implied  power  of  sale. 

3.  Power  vests  in  those  who  qualify,  where  several  are  appointed  and  part 

refuse. 

4.  Conveyance  to  a  person  as  executor,  his  heirs,  etc.,  conveys  a  fee. 

5.  Co-executor  may  call  a  co-executor  to  account  in  chancery. 

6.  Mortgages  and  leases  by  executors,  on  petition  to  the  county  court. 

7.  Foreclosure  of  such  mortgages  confined  to  the  county  court  having  j  uris- 

diction  over  the  property,  i.  e.,  in  the  county  where  it  is,  or  a  greater  part 
of  it  is,  situated. 

8.  Decree  of  strict  foreclosure  in  such  case  prohibited,  and  redemption  as  upon 

judgments  at  law  prescribed. 

9.  Actions  which  survive,  specified. 

10.  General  directions  ;  practice  indicated  ;  suggestions. 

1.  SALE  or  REAL  ESTATE.*  In  all  cases  where  power  is  given  in 
any  will  to  sell  and  dispose  of  any  real  estate  or  interest  therein, 

*  Says  Chancellor  KENT,  in  speaking  great  extent,  in  practice,  if  not  in 
of  tenures,  4  Com.  3  :  "  The  technical  theory,  lessened  the  necessity  for  the 
language  of  the  common  law  was  too  vast  fabric  of  learning  which  sur- 
deeply  rooted  in  our  usages  and  insti-  rounds  almost  every  thing  connected 
tutions  to  be  materially  affected  by  with  either  the  acquisition  or  disposi- 
legislative  enactments."  With  the  tion  of  real  property.  Personal  prop- 
other  parts  of  the  English  jurispru-  erty,  on  the  death  of  the  proprietor, 
dence,  the  intricate  doctrines  and  the  passes  to  the  executor  or  administra- 
complex  and  multifarious  learning  con-  tor,  such  being  one  of  the  qualities 
nected  with  landed  property,  were  which  pertain  to  it.  On  the  other 
introduced  into  this  country  and  sub-  hand,  real  property  passes  at  the  death 
sisted  in  force  before  the  Revolution,  of  an  intestate  to  the  heir,  subject  only 
Resort  then,  in  order  to  acquire  a  proper  to  the  debts  of  the  deceased.  Van- 
and  clear  understanding  of  the  subject,  sycle  v.  Richardson,  13  111.  171.  The 
must  be  had  to  the  text-books  (Black-  title,  by  the  common  law,  vests  in- 
stone's  Com. ;  Kent's  Com.;  Bouv.  Insti-  stantly  in  the  heir.  The  law  casts  the 
tutes  ;  Washburne  on  Real  Property),  title  of  the  realty  upon  the  heir,  at  the 
though  modern  legislation  has,  to  a  death  of  the  ancestor,  if  intestate  ; 


CH.  VII.] 


HEAL   ESTATE 


ADMINISTBATION. 


187 


Through  the  executor. 


and  the  same  is  sold  and  disposed  of  in  the  manner  and  by  the  per- 
sons appointed  in  such  will,  the  sales  shall  be  good  and  valid ;  and 
where  one  or  more  executors  shall  fail  or  refuse  to  qualify,  or  depart 
this  life  before  such  sales  are  made,  the  survivor  or  survivors  shall 
have  the  same  power,  and  their  sales  shall  be  as  good  and  valid  as  if 
they  all  joined  in  such  sales.(a) 

2.  WILL  ;  POWEK  OF  EXECUTOES  TO  SELL  LAND  UNDEB.    Where  a 
testator  directed  his  land  to  be  sold  and  the  proceeds  to  be  distrib- 
uted among  certain  persons,  without  directing  by  whom  such  sale 
(a)§96,R.  S.  1874,  p.  121. 


upon  such  estate  the  descent  is  then 
cast.  See  chap,  x,  infra.  So  that,  in 
cases  of  intestacy,  it  is  a  familiar  doc- 
trine that  the  administrator  has,  as 
such,  nothing  whatever  to  do  with  the 
real  property  of  the  estate  over  which 
he  is  appointed,  while  in  cases  of  wills 
unless  power  be  given  by  the  will,  the 
executor  is  equally  powerless,  taking 
neither  title  nor  power  by  virtue  of  the 
law,  except  it  be  conferred  by  the  will ; 
although  this  may  all  be  theoretically 
true,  yet,  practically,  both  the  executor 
and  administrator  may  have  more  or 
less  to  do  with  the  real  property  in 
administration.  But  in  doing  this  they 
are  exercising,  strictly  speaking,  only  a 
power.  In  dealing  with  personal  prop- 
erty on  the  other  hand,  they  have  the 
absolute  dominion  over  it.  Over  real 
property  the  law  gives  to  the  probate 
jurisdiction  ample  power,  but  the  title 
which  has  descended  to  the  heir  as  an 
inherent  quality  of  the  estate — one  of 
its  incidents,  must  be  divested  before 
this  power  can  be  brought  to  bear  in 
disposing  of  the  real  estate  of  the 
decedent.  The  personal  property  prov- 
ing insufficient  for  the  purposes  of 
administration,  a  SPECIAL  PROCEEDING, 
of  which  the  heir  must  be  notified 
either  actually  or  constructively,  is 
to  be  instituted,  in  order  to  convert  the 
real  estate,  or  enough  of  it,  into  assets 
to  complete  the  administration.  Bots- 
ford  v.  0' Conner,  57  111.  72. 

A  license  to  sell  the  real  property 
must  be  applied  for,  the  heir  must  be 
made  party  defendant,  and  notified.  It 
must  be  made  to  appear  that  the  per- 
sonal property  is  insufficient.  The 
administrator  in  this  represents  the 
creditors,  and  is  oftentimes  in  open 
antagonism  to  the  heir. 


The  proceeding  is  in  its  nature  very 
much  like  a  suit  in  chancery,  the  heir 
may  contest  the  matter  from  its  incep- 
tion to  its  close,  in  the  probate  court. 
He  then  has  the  right  of  appeal.  He 
may  collaterally  attack  the  record  so 
far  as  to  question  the  jurisdiction  of 
the  probate  court  both  over  the  estate 
and  his  person,  but  no  further.  57 
111.  72  ;  see  pp.  6,  62,  63,  supra.  So,  to 
the  conservator  or  guardian,  the  ap- 
pointment gives  no  title  to  the  real 
property.  They,  too,  are  equally  bound 
to  institute  special  proceedings  in  order 
to  reach  the  real  estate  of  their  wards. 
These  proceedings  in  form  and  in  sub- 
stance will  be  considered  further  on. 
See  chap,  xiv,  infra.  But  here  we 
must  first  study  the  nature  of  real 
property,  for  it  makes  little  difference 
whether  we  are  considering  it  as  con- 
trolled by  and  through  a  power  or  by 
title,  if  we  are  to  deal  with  it  at  all. 
To  learn  what  real  property  is  becomes 
now  the  all-important  inquiry,  and 
which  requires  much  learning  and  re- 
search to  fully  comprehend.  We, 
therefore,  endeavor  briefly  and  as  plain- 
ly as  possible  for  our  present  purpose, 
to  define  real  property  and  explain  what 
is,  and  what  is  not,  real  property  : 

REAL  PROPERTY  was  early  defined 
to  be  something  which  may  be  held  by 
tenure,  or  that  will  pass  to  the  heir  of 
the  possessor  at  his  death,  instead  of 
his  executor,  including  lands,  tene- 
ments, and  hereditaments,  whether 
the  latter  be  corporeal  or  incorporeal. 
1  Atkinson  Conv.  In  respect  to  prop- 
erty, real  and  personal  correspond  very 
nearly  with  immovables  and  movables 
of  the  civil  law.  By  the  latter, "  biens  " 
is  a  general  term  for  property ;  and 
these  are  classified  into  movable  and 


188 


REAL   ESTATE    IN   ADMINISTRATION.  [CH.  VII. 


Through  the  executor. 


was  to  be  made,  and  appointed  executors  who  qualified,  and  sold  the 
land  at  auction  in  good  faith  for  a  fair  consideration,  public  notice 
by  advertisement  being  first  given,  held,  that  the  will  was  to  be 
considered  as  a  bequest  of  a  fund  distributable  by  the  executors 
among  the  legatees,  and  that  the  executors  have  power  to  sell  the 
land  in  order  to  raise  the  fund,  without  procuring  a  decree  from  a 
court  of  chancery  for  that  purpose.  ( J)  If  a  testator  directs  his 
estate  to  be  sold  for  certain  purposes,  without  declaring  by  whom 
the  sale  is  to  be  made,  if  the  proceeds  are  distributed  by  the  execu- 
tor, he  takes  the  power  to  sell  by  implication.  Money  directed  to 
be  employed  in  the  purchase  of  land,  and  land  directed  to  be  sold 
and  turned  into  money,  are  to  be  considered  as  that  species  of 
property  into  which  they  are  directed  to  be  con  verted.  (1)) 

Where  deeds  conveying  lands  in  this  State  are  executed  by  execu- 
tors, duly  qualified  in  pursuance  of   the  power  vested  in   them  by 
will,  executed  and  proved  out  of   this  State,  the  same  shall  be  evi- 
(b)  Rankin  v.  Rankin,  36  111.  293. 


immovable,  and  the  latter  are  sub- 
divided into  corporeal  and  incorporeal. 
Guyot,  Repert.  Biens.  By  immovables 
the  civil  law  intended  property  which 
could  not  be  removed  at  all,  or  not 
without  destroying  the  same,  together 
with  such  movables  as  are  fixed  to  the 
freehold,  or  have  been  so  fixed  and  are 
intended  to  be  again  united  with  it, 
although  at  the  time  severed  there- 
from. Taylor's  Civ.  Law,  475.  The 
same  distinction  and  rules  of  law  as  to 
the  nature  and  divisions  of  property 
are  adopted  in  Scotland,  where,  as  by 
the  Roman  law,  another  epithet  is 
applied  to  immovables.  They  are 
called  heritable,  and  go  to  the  heir,  as 
distinguished  from  movables,  which 
go  to  executors  or  administrators.  So 
rights  connected  with  or  affecting 
heritable  property,  such  as  tithes, 
servitudes,  and  the  like,  are  them- 
selves heritable ;  and  in  this  it  coin- 
cides with  the  common  law.  Erskine's 
Inst.  192.  In  another  respect  the 
Scotch  coincides  with  the  common  law, 
in  declaring  growing  crops  of  annual 
planting  and  culture  not  to  be  herita- 
ble, but  to  go  to  executors,  etc., 
although  so  far  a  part  of  the  real 
estate  that  they  would  pass  by  a  con- 
veyance of  the  land.  Erskine's  Inst. 
193  ;  Williams'  Exec.  600.  Though  the 


term  real,  as  applied  to  property,  in 
distinction  from  personal,,  is  now  so 
familiar,  it  is  one  of  a  somewhat 
recent  introduction.  While  the  feudal 
law  prevailed,  the  terms  in  use  in  its 
stead  were  lands,  tenements  or  here- 
ditaments; and  these  acquired  the  epi- 
thet of  real  from  the  nature  of  the 
remedy  applied  by  law  for  the  recovery 
of  them,  as  distinguished  from  that 
provided  in  case  of  injuries,  contracts 
broken,  and  the  like.  In  the  one  case 
the  claimant  or  demandant  recovered 
the  real  thing  sued  for  —  the  laud  itself 
—  while,  ordinarily,  in  the  other  he 
could  only  recover  recompense  in  the 
form  of  pecuniary  damages.  The  term, 
as  a  means  of  designation,  did  not 
come  into  general  use  until  after  the 
feudal  system  had  lost  its  hold,  nor 
till  even  as  late  as  the  commencement 
of  the  seventeenth  century.  Wind  v. 
Jekyl,  A.  D.  1719,  1  P.  Wms.  Ch.  575; 
Williams'  Real  Prop.  6,  7. 

Under  the  term  real  property  or 
estate,  so  as  to  have  heritability  and 
other  incidents  of  lands,  tenements  or 
hereditaments,  it  may  be  stated,  in 
general  terms,  that  it  includes  land 
and  whatever  is  erected  or  growing 
upon  the  same,  with  whatever  is  be- 
neath or  above  the  surface. 


CH.   VII.] 


REAL   ESTATE   IX   ADMINISTRATION". 


189 


Through  the  executor. 


dence  of  title  in  the  vendee  or  grantee,  to  the  same  extent 
as  was  vested  in  the  testator  at  the  time  of  his  death  ;  unless  at 
the  time  of  executing  such  deed,  letters  testamentary  or  of  admini- 
stration on  the  estate  of  decedent  had  been  granted  in  this  State 
and  remain  unrevoked.  (c) 

3.  Power  vests  in  those  executors  who  qualify  to  act,  even  if  a 
part  refuse  to  qualify.(f/) 

4.  A  conveyance  to  a  person,  who  is  an  executrix,  her  heirs,  as- 
signs, and  successors,  passes  to  her  the  fee,  and  she  may  sell  and  dis- 
pose of  the  land,  although  received  in  satisfaction  of  a  debt  due  her 
testator.    The  words  "  successors  "  and  "  executrix,"  as  employed  in 
the  deed,  were  held  not  to  limit  or  control  the  estate  conveyed.(e) 


(c)  Cothran's  Statutes,  317,  §  34. 

(d)  CHnefelter  v.  Ay  res,  16  111.  330  ; 
Wardwell    v.  McDowell,    31   id.  364; 


Wisdom  v.  Becker,  52  id.   342.     See 
Jurisdiction. 
(e)Greer  v.    Walker,  42  111.  401. 


This  would,  of  course,  include  houses 
standing  and  trees  upon  the  land,  and 
would  not  embrace  chattels  like  stock 
upon  a  farm,  or  furniture  in  a  house. 
But  not  only  may  houses  or  growing 
»«-ees  acquire  the  character  of  personal, 
«ut  various  chattels,  originally  per- 
sonal movables,  may  acquire  that  of 
real  property.  Thus,  if  one  erect  a 
dwelling-house  upon  the  land  of 
another  by  his  assent,  it  is  the  per- 
sonal estate  of  the  builder.  6  N.  H. 
555;  6  Me.  452;  8  Pick.  (Mass.)  404. 
So,  if  a  nursery  man  plant  trees,  for  the 
purpose  of  growing  them  for  the 
marfcet,  upon  land  hired  by  him,  they 
would  be  personal  estate.  1  Mete. 
(Mass.)  27 ;  4  Taunt.  316. 

So  crops,  while  growing,  planted  by 
the  owner  of  the  land,  are  a  part  of  the 
real  estate ;  but  if  sold  by  him  when 
fit  for  harvesting,  they  become  per- 
sonal (5  Barnew.  &  C.  829) ;  and  a  sale 
of  such  crops,  though  not  fit  for  har- 
vest, as  personal,  has  been  held  good. 
4  Mees.  &  W.  Exch.  343 ;  2  Dana  (Ky.), 
206 ;  2  Rawle  (Penn.),  161. 

So  trees  growing,  though  not  in  a 
nursery,  may  be  changed  into  the  cate- 
gory of  personal  estate,  if  sold  to  be 
cut  without  any  right  to  have  them 
stand  to  occupy  the  land.  4  Mete. 
(Mass.)  584 ;  9  Barnew.  &  C.  561 ;  7  N. 
H.  523.  But  if  the  owner  of  land  in 
fee  grant  the  trees  growing  thereon  to 
another  and  his  heirs,  to  be  cut  at  his 
pleasure,  the  property  in  the  trees 


would  be  real.  4  Mass.  266.  The 
same  rule  would  apply  to  property  in 
fee  in  a  dwelling-house,  though  the 
owner  only  have  a  right  to  have  it 
stand  upon  the  land  of  another.  And 
one  may  own  a  chamber  in  a  house  as 
his  separate  real  estate.  ITerm,  701  ; 
1  Mete.  (Mass.)  541  ;  10  Conn.  318. 

So  a  large  class  of  articles  originally 
wholly  movable,  and  which  may  be  at 
the  time  even  disconnected  with  the 
land,  may  be  regarded  as  real  prop- 
erty, from  having  been  fitted  for  and 
actually  applied  to  use  in  connection 
with  real  estate,  such  as  keys  to  locks 
fastened  upon  doors,  mill-stones  and 
irons,  though  taken  out  of  the  mill  for 
repairing,  window  blinds,  though  tem- 
porarily removed  from  .the  house,  and 
fragments  of  a  dwelling-house  de- 
stroyed by  a  tempest.  Williams'  Exec. 
613-615;  11  Coke,  50;  10  Paige's 
Ch.  162:  30  Penn.  St.  185.  And  a 
conveyance  of  "  a  saw-mill  "  with  the 
land  was  held  to  pass  iron  bars  and 
chains  then  in  it  which  had  been  fitted 
for  and  used  in  operating  it.  6  Me. 
154. 

In  case  of  corporations,  the  same 
property  may  assume  the  character 
both  of  real  and  personal.  Thus,  if  the 
corporation  hold  real  estate,  such  as  a 
mill  or  banking  house,  it  would  be  in 
the  hands  of  the  body  corporate  real 
estate,  but  as  constituting  a  part  of  the 
property  owned  and  represented  in  the 
form  of  stock  by  the  members  consti- 


190 


EEAL   ESTATE   IN   ADMINISTKATIOX. 


[CH.  Vll. 


Through  the  executor. 


5.  Where  there  axe  two  or  more  executors  or  administrators  of  an 
estate,  and  any  one  of  them  takes  all  or  a  greater  part  of  such  estate 
and  refuses  to  pay  the  debts  of  the  decedent,  or  refuses  to  account 
with  the  other  executor  or  administrator,  in  such  case  the  executor 
or  administrator  so  aggrieved  may  have  his  action  of  account  or  suit 
in  equity  against  such  delinquent  executor  or  administrator,  and 
recover  such  proportionate  share  of  said  estate  as  shall  belong  to 
him;  and  every  executor  being  a  residuary  legatee  may  have  an 
action  of  account  or  suit  in  equity  against  his  co-executor  or  co-exec- 
utors, and  recover  his  part  of  the  estate  in  his  or  their  hands.  Any 
other  legatee  may  have  the  like  remedy  against  the  executors :  Pro- 
vided, that  before  any  action  shall  be  commenced  for  legacies  as 
aforesaid,  the  court  shall  order  them  to  be  paid.( /) 
(/)§118,R.  S.  1874,  p.  122. 


tuting  the  body  of  the  corporation,  it 
is  personal.  3  Mees.  &  W.  Exch.  422  ; 
Angell  &  A.  on  Corp.,  §  557.  But  the 
shares  in  corporate  property  may  be 
real  estate  when  declared  to  be  so  by 
the  charter  creating  it,  or  when  the 
corporation  is  merely  constituted  to 
hold  and  manage  lands,  like  proprie- 
tors of  common  lands  in  the  New  Eng- 
land States.  2  P.  Wms.  127  ;  2  Conn. 
567  ;  10  Mass.  150. 

Manure  made  upon  a  farm  in  the 
usual  manner,  by  consumption  of  its 
products,  would  be  a  part  of  the  real 
estate  ;  while  if  made  from  products 
purchased  and  brought  on  to  the  land 
by  the  tenant,  as  in  case  of  a  livery 
stable,  it  would  be  personal  (21  Pick. 
[Mass.]  371 ;  3  N.  H.  503  :  6  Me.  222 ;  2  N. 
Chipm.  [Vt.]  115  ;  11  Conn.  525);  though 
in  England  the  out-going  tenant  may 
claim  compensation  for  manure  left 
upon  the  farm  under  such  circum- 
stances. 1  Cromp.  &  M.  Exch.  809. 

There  is  a  large  class  of  articles 
known  to  the  law  as  fixtures,  which 
are  real  or  personal  according  to  cir- 
cumstances. Whatever  is  fitted  for 
and  actually  applied  to  real  estate,  if 
of  a  permanent  nature,  is  real  estate, 
and  passes  from  the  vendor  to  the 
vendee  as  such.  2Q  Wend.  368;  2 
Smith's  Lead.  Cas.  (Am.  ed.)  168. 
And  the  same  rule  applies  between 
mortgagor  and  mortgagee.  19  Barb. 
317  ;  4  Mete.  (Mass.)  311  ;  3  Edw.  Ch. 
241).  The  same  is  the  rule  as  be- 
tween heir  and  executor  upon  the 


death  of  the  ancestor,  and  between 
debtor  and  creditor  upon  a  levy  made 
by  the  latter  upon  the  land  of  the 
former.  10  Paige's  Ch.  163  ;  7  Mass. 
432.  Whereas,  such  fixtures  as  be- 
tween a  tenant  and  a  landlord  are  per- 
sonal estate,  and  may  be  removed  as 
such,  unless  left  attached  to  the  realty 
by  the  tenant  at  the  close  of  his  term, 
in  which  case  they  become  a  part  of 
the  realty.  2  Pet  143 ;  7  Cow.  319  ; 
1  Wheat.  91 ;  17  Pick.  (Mass.)  192. 

The  law  of  burials.  1.  In  this 
country  corpses  and  their  burials  are 
not  matters  of  ecclesiastical  cogni- 
zance. 2.  The  right  to  bury  a  corpse 
or  preserve  it  is  a  legal  right,  belong- 
ing, in  the  absence  of  testamentary 
disposition,  exclusively  to  the  next  of 
kin,  and  includes  the  right  to  select  and 
change  at  pleasure  the  place  of  sepul- 
ture. 3.  If  the  place  of  burial  be  taken 
for  public  use,  the  next  of  kin  may 
claim  indemnity  for  the  expense  of 
removal  and  suitable  re-interment. 
Matter  of  Beekman  Street,  4  Brad.  503. 
532 ;  Bogert  v.  Indianapolis,  13  Ind 
134 ,  Matter  of  Brick  Church,  3  Edw. 
Ch.  155. 

Pews  in  churches  are  sometimes  real 
and  sometimes  personal  estate,  depend- 
ing, generally,  upon  local  statutes ; 
though  in  the  absence  of  statute  law  it 
would  seem  they  were  clearly  interests 
in  real  estate,  and  partake  of  the 
character  of  such  estate.  1  Pick. 
(Mass.)  104;  16  Wend.  28;  5  Mete. 
(Mass.)  132 


CH.   VII.]  EEAL   ESTATE   LN"   ADMINISTKATION. 


191 


Through  the  executor. 


6.  MOETGAGE  OF  EEAL  ESTATE  BY  EXECUTOKS.  Eeal  estate  may 
be  mortgaged  in  fee  or  for  a  term  of  years,  or  leased  by  executors : 
Provided,  that  the  term  of  such  lease,  or  the  time  of  the  maturity 
of  the  indebtedness  secured  by  such  mortgage,  shall  not  be  extended 
beyond  the  time  when  the  heirs  entitled  to  such  estate  shall  attain 
the  age  of  twenty-one  years,  if  a  male,  or  eighteen  years,  if  a 
female:  And  provided  also,  that  before  any  mortgage  or  lease  shall 
be  made,  the  executors  shall  petition  the  county  court  for  an  order 
authorizing  such  mortgage  or  lease  to  be  made,  and  which  the  court 
may  grant  if  the  interests  of  the  estate  may  require  it :  Provided, 

lute  until  after  administration.  He 
takes  a  defeasible  estate,  liable  to  be 
defeated  by  a  sale  made  by  the  admin- 
istrator in  due  course  of  administra- 
tion. Vansyde  v.  Richardson,  13  111. 
171 ;  Meyer  v.  McDougal,  47  id.  278  ; 
see  chap,  x,  infra.  But  he  must  be 
notified  before  his  title  can  be  divested. 
Bottford  v.  O'Conner,  57  111.  72.. 

It  is  necessary  then  for  the  adminis- 
trator to  know  whether  a  lease-hold  is 
his,  by  an  absolute  title  as  with  per- 
sonalty, or  whether  he  can  reach  it 
only  by  a  special  proceeding  through  a 
power  as  in  case  of  a  free-hold— whether 
the  term  goes  to  the  heir  or  to  the  per- 
sonal representative. 

Whether  our  statute  (R.  S.,  ch.  57, 
p.  301,  §  1 ;  §  3,  R.  S.  1874,  p.  622  ; 
2  Hill's  C.  L.  598),  has  gone  so  far  as  to 
change  the  common  law  in  this  respect, 
as  to  leasehold  estates  or  terms,  may 
perhaps  be  doubted.  For  it  would 
seem  that  the  conveyance  act  (R.  S., 
ch.  24,  §  39,  p.  110 ;  §  38,  R.  S.  1874, 
p.  280),  set  all  doubts  at  rest  on  this 
point  were  it  not  for  the  next  sec- 
tion (§  39,  R.  S.,  p.  110;  §  38,  R.  S. 
1»74,  p.  280),  or  exception,  that  the 
act  of  conveyances  shall  not  be  con- 
strued so  as  to  embrace  last  wills 
and  testaments  (as  we  read  it)  —  the 
law  pertaining  to  last  wills  and  testa- 
ments including  the  entire  statute  of 
wills.  If  our  reading  be  correct,  the 
common-law  rule,  relative  to  the  dis- 
position of  terms  at  the  death  of  the 
termer  or  lessee,  is  still  the  rule  in 
Illinois.  But  see  Griffin  v.  Marine  Co., 
52  111.  130;  Scott  v.  Moore,  3  Scam. 
306;  Nicoll  v.  Mason,  49  111.  358;  Nicoll 
v.  Ogden,  29  id.  323 ;  Nicoll  v.  Miller, 
37  id.  387 ;  Vansyde  v.  Richardson,  13 
id.  171 ;  Cook  v.  Foster,  2  Gilm.  652. 


Even  money  often  has  the  character 
of  realty  attached  to  it,  so  far  as  being 
heritable,  and  the  like,  by  equity, 
where  it  is  the  proceeds  of  real  estate 
wrongfully  converted  into  money,  or 
which  ought  to  be  converted  into  real 
estate.  3  Wheat.  577  ;  1  Brown's  Ch. 
6,497  ;  13  Pick.  (Mass.)  154. 

Slaves,  in  some  of  the  States,  were 
so  far  regarded  as  real  estate  as  to 
descend  to  heirs,  instead  of  passing  to 
personal  representatives.  2  Dana  (Ky.), 
43.' 

There  is  one  class  of  interests  in 
lands,  etc.,  which,  from  relating  to 
lands  which  are  real,  and  from  being 
governed  as  to  succession  by  the  rules 
which  apply  to  personal  property,  or, 
as  that  is  called,  chattels,  takes  the 
name  of  chattels  real.  Of  this  class 
are  terms  for  years  in  lands.  Upon 
the  death  of  the  tenant  of  such  a  term, 
it  goes  to  his  personal  representatives, 
and  not  to  his  heirs.  2  Blackstone's 
Com.  386. 

There  is  a  very  large  class  of  interests 
in  lands  however,  which,  at  common 
law,  at  the  death  of  the  proprietor,  goes 
to  the  personal  representative  and  not 
the  heir.  (2  Bl.  Com.  386.)  These  are 
terms  for  years,  termed  lease-hold  in- 
terests, or  real  property  held  by  virtue 
of  a  lease ;  without  sufficient  consider- 
ation of  the  subject,  in  Vol.  I  Common 
Law,  at  page  456,  we  said :  "  On  the 
death  of  lessee  his  interest  descends  to 
his  heirs  ;  "  referring  to  the  453d  page, 
see  1  Hill's  C.  L.,  pp.  453,  456,  and  52 
111.  130.  But  see  Scott  v.  Moore,  3 
Scam.  319  ;  2  Bl.  Com.  386.  The  im- 
portance of  this  question,  to  the  proper 
administration  of  estates,  is  apparent 
if  we  look  at  it  as  jurisdictional.  The 
title  of  the  heir  does  not  become  abso- 


192  REAL   ESTATE   IN   ADMINISTRATION.  [CH.  VIL 

Through  the  administrator: 

further,  that  the  executor  making  application  as  aforesaid,  upon 
obtaining  such  order,  shall  enter  into  bond,  with  good  security, 
faithfully  to  apply  the  moneys  to  be  raised  upon  such  mortgage  or 
lease  to  the  payment  of  the  debts  of  the  testator  ;  and  all  moneys  so 
raised  shall  be  assets  in  the  hands  of  such  executor  for  the  payment 
of  debts,  and  shall  be  subject  to  the  order  of  the  court  in  the  same 
manner  as  other  assets,  (g) 

7.  Foreclosures  of  such  mortgages  shall  only  be  made  by  petition 
to  the  county  court  of  the  county  in  which  the  premises,  or  a  major 
part  thereof,  are  situated  ;  and  any  sale  made  by  virtue  of  any  order 
or  decree  of  foreclosure  may,  at  any  time  before  confirmation,  be 
set  aside  by  the  court  for  inadequacy  of  price  or  other  good  cause, 
and  shall  not  be  binding  upon  the  executor  until  confirmed  by  the 


8.  No  decree  of  strict  foreclosure  shall  be  made  upon  any  such 
mortgage,  but  redemption  shall  be  allowed  as  is  provided  by  law  in 
cases  of  sales  under  executions  issued  upon  common-law  judg- 
ments.^') 

9.  ACTIONS  WHICH  SURVIVE.    In  addition  to  the  actions  which 
survive  by  the  common  law,  the  following  shall  also  survive  :  Ac- 
tions of  replevin,  actions  to  recover  damages  for  an  injury  to  the 
person  (except  slander  and  libel),  actions  to  recover  damages  for  an 
injury  to  real  or  personal  property,  or  for  the  detention*or  conver- 
sion of  personal  property,  and  actions  against  officers  for  misfeas- 
ance, malfeasance  or  nonf  easance  of  themselves  or  their  deputies  ; 
and  all  actions  for  fraud  or  deceit.  (/) 

10.  General  directions,  the  practice  and  suggestions  will  be  given 
further  on.(&) 


SECTION  II. —  ADMINISTRATION   OVER   REAL   ESTATE  THROUGH   THE 
ADMINISTRATOR. 

1.  When  realty  may  be  sold. 

2.  Proceedings  to  be  commenced  by  petition  ;  parties. 

3.  Requisites  of  the  petition. 

4.  Cause  to  be  prosecuted  according  to  the  practice  in  chancery. 

5.  Summons  to  issue,  requisites  of. 

(g).§  119,  Cothran's  Stats.,  1880,  79.         (j)  §  122,  id.,  p.  80. 
(/*)  §  120,  id.,  p.  80.  (k)  See  ch.  xiv,  infra. 

(t)  §  121,  id. 


CH.  YII.]  REAL   ESTATE   IX   ADMINISTRATION.  193 


Tlirough  tlie  administrator. 


6.  Service  of  summons. 

7.  Cases  for  constructive  service  ;  affidavit  of  non-residence,  etc. 

8.  Publication  notice. 

9.  Guardian  ad  litem. 

10.  The  hearing,  order  and  decree  of  sale. 

11.  The  sale  to  divest  title  of  defendants. 

12.  Preliminaries  and  regulations  for  making  sale,  the  notice,  penalties,  etc. 

13.  Proceeds  of  sale,  assets  in  the  hands  of  the  administrator. 

14.  Equitable  estates  ;  how  sold  or  made  legal  estates  and  sold. 

15.  The  practice  indicated . 

16.  Forms  for  pleadings,  affidavits,  process,  orders,  decrees,  etc.,  etc. 

An  administrator  has  no  power  over  the  real  estate  of  a  decedent, 
other  than  to  obtain  a  decree  of  court  and  sell  the  same  thereunder, 
to  pay  debts,  when  the  personal  property  is  insufficient.  LeMoyne  v. 
Quimby,  70  111.  399  ;   Walker  v.  Diehl,  79  id.  473. 

1.  WHEN  SALE  MAY  BE  HAD.    When  the  executor  or  administra- 
tor has  made  (1)  a  just  and  true  account  of  the  personal  estate  and 
debts  to  the  county  court,  and  (2)  it  is  ascertained  that  the  personal 
estate  of  a  decedent  is  insufficient  to  pay  the  just  claims  against  his 
estate,  and  (3)  there  is  real  estate  to  which  such  decedent  had  claim 
or  title,  such  real  estate,  or  such  portion  as  may  be  necessary  to  satisfy 
(1)  the  indebtedness  of  such  decedent,  and  (2)    the  expenses  of 
administration,  may  be  sold  in  the  manner  provided  by  statute.  (I) 

2.  The  mode  of  commencing  the  proceedings  for  the  sale  of  real 
estate  in  such  cases  shall  be  by  the  FILING  OF  A  PETITION  by  the 
executor  or  administrator,  in  the  county  court  of  the  county  where 
letters  testamentary  or  of  administration  were  issued.     The  widow, 
heirs  or  devisees  of  the  testator  or  intestate,  and  the  guardians  of  any 

(I)  §   97,  E,  S.  1874,  p.  121.     For  apply,  in  connection  with  the  heir,  for 

discussion  of  all  the  sections  of   the  an  order  to  sell  the  realty.  The  parties 

repealed    statutes    giving    power    to  in  such  cases  are  not  in  privity ;  the 

the  administrator  to  affect  decedent's  admissions  of  an  administrator  do  not 

real     estate,    see    Phelps    v.    Funk-  bind  the  heir,  and  the  heir  may  con- 

houser,  39  111.  401.     A  sale  cannot  be  test  an  application  for  the  sale  of  the 

made  under  an  act  of  the  legislature,  realty.    Hopkins  v.  McCan,  19  111.  113. 

without  judicial  inquiry  as  to  the  ex-  Debts,  how  established.     A  judgment 

istence  of  debts.    Rozier  v.  Pagan,  46  against  an  administrator  is  prima  facie 

111.  404.    There  must  be  debts  existing,  evidence  of  the  existence  of  a  debt 

An  order  to  sell  the  real  estate  of  a  de-  against  the  estate,  as  against  an  heir, 

cedent  will  not  be  made  unless  it  is  Stone  v.  Wood,  16  111.  177.     Probate  of 

shown  that  there  are  existing  debts  the    claims.     It   is   not    sufficient    to 

against  the  estate.    Dorman  v.  Yost,  show  that  the  claims  exist  or  have 

13  111.  127.    Upon  a  deficiency  of  assets  been  allowed  by  the  probate  court  in 
to  pay  the  debts  of  the  estate,  he  may 
25 


REAL  ESTATE   IN   ADMINISTRATION. 


[CH.  VII. 


Throvigh  the  administrator. 


such  as  are  minors,  and  the  conservators  of  such  as  have  conserva- 
tors, and  the  actual  occupants  of  the  premises,  where  the  same  or 
any  part  thereof  are  occupied,  shall  be  made  parties  defendants.  If 
there  are  persons  interested  in  the  premises  whose  names  are  not 
known,  then  they  shall  be  made  parties  by  the  name  of  unknown 
owners,  (m) 

3.  THE  PETITION  SHALL  SET  FORTH  THE  FACTS  AND  CIRCUM- 
STANCES on  which  the  petition  is  founded,  in  which  shall  be  stated 
the  amount  of  claims  allowed,  with  an  estimate  of  the  amount  of 
just  claims  to  be  presented,  and  it  shall  also  contain  the  amount  of 
personal  estate  which  has  come  to  his  hands,  and  the  manner  in 
which  he  has  disposed  of  the  same,  with  a  statement  of  the  amount 
of  claims  paid.  The  petition  shall  be  signed  by  the  executor  or 
administrator,  and  verified  by  his  affidavit,  and  shall  be  filed  at  least 
ten  days  before  the  commencement  of  the  term  of  court  at  which  the 
application  shall  be  made.(w) 


(m)  %  98,  R.  S.  1874,  p.  122. 

(»)  §  99,  id.  Petition.  The  proceed- 
ings will  be  reversed  if  the  record  does 
not  show  any  petition  by  the  adminis- 
trator. Monahon  v.  Vandyke,  27  111. 


154.  The  petition  should  phow  that 
the  contingency  exists  which  author- 
izes this  proceeding.  Hobson  v.  Payne, 
45  111.  158.  The  petition  need  not  give 
the  names  of  the  heirs  who  are  the 


another  State.  Hobson  v.  Payne,  45 
111.  158.  Debts  created  by  the  admin- 
istrator after  the  death  of  intestate 
will  not  justify  a  proceeding  to  sell  the 
land.  Fitzgerald  v.  Glancy,  49  111.  465. 
A  creditor  cannot,  by  an  allowance  of 
his  claim,  or  by  obtaining  judgment 
against  an  estate  or  an  administrator, 
thereby  acquire  any  specific  lien  upon 
the  lands  of  the  intestate,  nor  could 
he  enforce  the  collection  of  a  judg- 
ment by  the  levy  of  an  execution  upon 
the  land.  Stttlman  v.  Young,  16  111. 
318.  Where  the  legislature  passed  a 
special  act,  authorizing  the  adminis- 
trator to  sell  the  real  estate  of  a  party, 
to  pay  debts,  and  reinvest  the  surplus, 
with  the  approval  of  the  probate  j  udge, 
for  the  benefit  of  the  widow  and  heir : 
Held,  that  the  power  was  conferred  for 
the  purpose  of  paying  debts,  and  could 
not  Da  exercised  until  required  for  that 
purpose.  Davenport  v.  Young  et  ux., 
16  111.  548.  Where  an  administrator 
applies  for  leave  to  sell  the  real  estate 
for  the  purpose  of  paying  a  judgment, 
the  judgment  is  not  conclusive  as 
against  an  heir,  and  he  may  contest 
the  application,  unless  he  has  been 


made  a  party  to  the  judgment,  by 
joining  in  taking  an  appeal  from  it  to 
a  superior  court.  Stone  v.  Wood,  16 
111.  177  ;  Hopkins  v.  McCan,  19  id.  113 ; 
Moline  Water  Power  &  Manf.  Co.  v. 
Webster,  26  id.  234.  See  contra,  Gib- 
son v.  Boll,  27  id.  90.  All  real  estate, 
by  statute,  may  be  sold  for  the  pay- 
ment of  the  debts  of  intestates,  but 
administrators  have  no  power  to  sell 
or  incumber  without  an  order  of  court. 
The  lands  descend  to  the  heirs  sub 
modo,  subject  to  this  liability.  Still- 
man  v.  Young,  16  111.  318.  Appraise- 
ment bill.  It  is  not  essential  that  it 
appear  an  appraisement  bill  was  filed 
by  an  administrator,  to  authorize  the 
court  to  grant  his  petition  for  an  order 
to  sell  land  to  pay  debts.  Shoemate  v. 
Lockridge,  53  111.  503.  Held,  on  objec- 
tion to  a  petition  in  the  circuit  court, 
that  the  statement  as  to  the  personal 
assets  was  incorrect ;  that  where  the 
judge  of  the  probate  court  has  prop- 
erly certified  the  amount  of  assets  and 
claims,  showing  a  deficiency  of  per- 
sonal assets,  such  evidence  will  justify 
an  order  of  sale.  Madden  v.  Cooper, 
47  111.  359. 


<JH.   VII.J 


EEAL   ESTATE   IX    ADMINISTRATION. 


195 


Through  the  ad  ninistrator. 


4.  SUCH  APPLICATION  SHALL  BE  DOCKETED  as  other  causes,  and 
the  petition  may  be  amended,  heard  or  continued  for  notice,  or  for 
other  cause.  The  practice  in  such  cases  shall  be  the  same  as  in  cases 
in  chancery.(o) 

o.  Upon  the  filing  of  the  petition,  the  clerk  of  the  court  where  the 
same  may  be  filed  shall  issue  a  SUMMONS,  directed  to  the  sheriff  of 
the  county  in  which  the  defendant  resides,  if  the  defendant  is  a  resi- 
dent of  this  State,  requiring  him  to  appear  and  answer  the  petition 
on  the  return  day  of  the  summons ;  and  where  there  are  several 
defendants,  residing  in  different  counties,  a  separate  summons  shall 
be  issued  to  each  county,  including  all  the  defendants  residing 
therein.  Every  summons  shall  be  made  returnable  to  the  first  term 
of  the  county  court  after  the  date  thereof,  unless  the  petition  is  filed 
within  ten  days  immediately  preceding  any  term,  in  which  case  the 
summons  shall  be  returnable  to  the  next  term  thereafter. (p) 

(o)  §  100,  R.  S.  1874,  p.  122  ;  see  Hill's  publication  and  the  day  of  the  term  at 

Chan.  Pr.  which  application  for  an  order  to  sell 

(p)§101,id.  The  intervention  of  six  is  made,  is  sufficient.  Mpdden  v. 

weeks'  notice  between  the  first  day  of  Cooper,  47111.359.  After  the  expiration 


owners  of  the  land  sought  to  be  sold. 
Gibson  v.Roll,27Ul.  92  ;  Stow  v.  Kim- 
lall,  28  id .  98.  But  see  §  99,  act  1872. 
If  the  administrator  files  the  petition 
and  dockets  the  cause  at  the  term 
named  in  the  notice,  it  would  be  com- 
petent for  the  court  to  continue  the 
cause  to  a  subsequent  term  and  then 
grant  an  order  to  sell  the  real  estate . 
SchneU  \.City  of  Chicago,  38  111.  383  ; 
Shoemate  v.  Lockridge,  53  id.  503.  In 
a  proceeding  by  an  administrator  for 
leave  to  sell  real  estate,  the  petition, 
notice  of  sale,  and  deed  to  the  pur- 
chaser, described  the  premises  cor- 
rectly, as  being  in  section  thirty-ihrec  ; 
the  abstract  from  the  county  court,  the 
inventory,  and  the  order  of  sale  de- 
scribed the  land  as  being  in  section 
twenty-three .  Held,  in  a  collateral  pro- 
ceeding, involving  the  title,-  that  the 
misdescription  was  a  mere  clerical 
error.  ,  Shoemate^v.  Lockridge,  53  111. 
503.  Requisites  of  petition.  In  a  pro- 
ceeding by  an  administrator,  under  the 
act  of  1857,  for  leave  to  sell  real  estate 
to  pay  debts,  the  petition  should  allege, 
in  order  to  give  the  court  jurisdiction 
to  order  the  sale,  that  an  account  of  the 
personal  estate  and  debts  had  been 
made,  as  mentioned  in  the  act,  or  that 
the  decedent  left  no  personal  estate  of 
which  an  account  could  be  made.  Bree 
v.  Bree,  51  111.  367.  And  where  the 


petition  alleges  that  the  decedent  left 
no  persona]  estate,  and  the  finding  of 
the  court  is,that  all  the  material  allega- 
tions of  the  petition  had  been  proved, 
the  court  will,  in  the  absence  of  any 
thing  in  the  record  rebutting  such  find- 
ing, presume  that  it  was  warranted  by 
the  evidence.  The  evidence  need  not 
all  be  preserved  in  the  record.  Bree  v. 
Bree,  51  111.  3G7 ;  Shoemate  v.  Lock- 
ridge,  53  id.  503.  Not  necessary  to 
show  that  the  personal  estate  in 
another  State  has  been  exhausted. 
Eosenthal  v.  Renick,  44  111.  202.  The 
proper  course  to  be  pursued  upon  an 
application  to  sell  real  estate  for  the 
payment  of  debts  indicated.  Stoio  v. 
Kimball,  28  111.  93.  A  petition  for  the 
sale  of  realty  for  the  payment  of  debts 
must  clearly  show  that  there  are  debts 
of  the  estate  existing  and  allowed, 
and  that  the  personalty  is  exhausted. 
Moffi.it  v.  Mojfitt,  09  111.  C41.  It  must 
appear  and  be  proved  that  such  debts 
are  legally  chargeable  upon  the  estate 
in  order  to  support  a  decree  of  sale. 
Walker  v.  DieM,  79  111.  473.  In  a  case 
where  no  assets  came  to  the  hands  of 
the  administrator,  but  he  paid  of  his 
own  money,  taxes,  insurance,  court 
costs,  etc.,  it  was  held  the  decree  for 
the  sale  of  land  could  not  be  sustained. 
Walker  v.  Diehl,  79  111.  473. 


196 


EEAL   ESTATE 


ADMINISTRATION. 


[CH.  VII. 


Through  the  administrator. 


6.  THE  SERVICE  OF  SUMMONS  shall  be  made  by  reading  thereof  to 
the  defendant,  or  leaving  a  copy  thereof  at  the  usual  place  of  abode, 
with  some  member  of  the  family  of  the  age  of  ten  years  and  upward, 
and  informing  such  person  of  the  contents  thereof,  which  service 
shall  be  at  least  ten  days  before  the  return  of  such  summons.(g) 

7.  Whenever  any  petitioner  or  his  attorney  shall  file,  in  the  office  of 
the  clerk  of  the  court  in  which  his  petition  is  pending,  an  affidavit 
showing  that  any  defendant  resides  or  hath  gone  out  of  this  State, 
or  on  due  inquiry  cannot  be  found,  or  is  concealed  within  this  State, 
so  that  process  cannot  be  served  upon  him,  and  stating  the  place  of 

(q)  %  102,  R.  S.  1874,  p.  122. 


of  one  year  from  the  final  settlement 
of  the  account  of  an  intestate  in  the 
court  of  probate,  by  the  administrator, 
no  application  on  the  part  of  the  ad- 
ministrator to  sell  the  real  estate  of  the 
intestate,  to  satisfy  debts  still  due,  will 
be  sustained,  as  a  general  rule.  Dor- 
man  v.  Lane,  1  Gilm.  143.  Notice  of 
intention  to  apply.  An  administrator 
may  give  a  general  notice  by  publica- 
tion of  his  intention  to  apply  for  leave 
to  sell  real  estate  for  the  payment  of 
decedent's  debt,  without  naming  par- 
ticular persons  as  defendants,  the 
statute  having  regard  to  all  persons 
interested,  whether  defendants  or  not. 
Bowies'  Heirs  v.  Rouse,  Adm'r,  8  Gilm. 
409  ;  Gibson  v.  Roll,  27  111.  89.  Parties 
interested  are  bound,  after  proper 
notice,  to  appear  and  contest  the  ap- 
plication to  sell  lands,  on  the  day 
specified ;  but  if  the  petition  be  not 
then  presented,  they  are  not  required 
to  wait  from  day  to  day  to  see  whether 
any  move  will  be  made  in  the  case. 
But  after  the  presentation  of  the  peti- 
tion, the  court  may  fix  a  subsequent 
day  for  the  hearing  of  proofs  or  other 
action  in  the  case.  Gibson  v.  Roll,  80 
id.  172.  Want  of  service — decree  not 
binding.  If  notice  of  such  a  proceed- 
ing is  not  served  or  given  to  the  heirs, 
in  some  mode  known  to  the  law,  a 
decree  licensing  the  executor  or  admin- 
istrator to  sell  lands  of  the  testator  to 
pay  debts  will  be  void,  and  may  be 
questioned  in  both  direct  and  collateral 
proceedings.  Morris  v.  Hogle  37  111. 
150  ;  Schnett  v.  City  of  Chicago,  38  id. 
383;  Clark  v.  Thompson,  47  id.  25. 
Statute  must  be  followed.  In  a  pro- 
ceeding by  an  administrator  to  sell  the 


real  estate  of  his  decedent,  unless  the 
mode  pointed  out  by  the  statute  for 
bringing  the  parties  interested  before 
the  court  is  pursued,  there  will  be 
such  a  want  of  jurisdiction  as  will 
vitiate  the  order  for  sale.  Herdman, 
v.  Short,  18  111.  59 ;  Gibson  v.  Roll,  27 
id.  92 ;  Bree  v.  Bree,  51  id.  267.  Notice 
by  an  administrator  of  an  application 
to  sell  lands  must  be  published  for 
three  successive  weeks,  the  first  publi- 
cation to  be  at  least  six  weeks  before 
the  presenting  of  the  petition.  If  this 
be  not  done,  parties  are  not  bound  to 
take  notice  of  such  application.  And 
although  a  petition  may  not  be  pre- 
sented in  fact  until  a  later  day  than 
the  one  fixed  by  the  notice,  nor  till 
after  the  six  weeks  required  by  the 
statute  have  expired,  yet  that  fact  does 
not  cure  the  defect.  Gibson  v.  Roll,  30 
111.  172.  Where  the  statute  requires 
six  weeks'  notice,  a  publication  of  only 
thirty  days  is  a  fatal  error.  Monahon 
v.  Vandyke,  27  111.  155.  At  the  term 
specified.  The  application  must  be 
made  at  the  term  specified  in  the  notice 
published  by  the  administrator.  If 
not  made  at  that  term,  the  proceeding 
is  abated,  and  the  parties  in  interest 
must  be  brought  into  court  by  another 
notice.  '  Turney  v.  Turney,  24  111.  625. 
The  notice  given  of  such  application 
need  not  specify  the  day  of  term  on 
which  the  petition  will  be  presented. 
Id. ;  Finch  v.  Sink,  46  111.  169  ;  Mad- 
den v.  Cooper,  47  id.  359  ;  Shoemate  v. 
Lockridge,  53  id.  503.  An  administra- 
tor published  notice  in  a  newspaper 
in  Shelby  county  that  he  would  pre- 
sent a  petition  "  at  the  next  term  of  the 
Shelby  circuit  court,  to  be  holden  in 


CH.  VII.]  KEAL   ESTATE   IX   ADMINISTRATION.  197 

Through  the  administrator. 

residence  of  such  defendant,  if  known ;  or  that,  upon  diligent 
inquiry,  his  place  of  residence  cannot  be  ascertained,  the  clerk  shall 
cause  publication  to  be  made  in  some  newspaper  printed  in  his 
county,  and  if  there  is  no  newspaper  published  in  his  county,  then 
in  the  nearest  newspaper  published  in  this  State,  containing  notice 
of  the  filing  of  the  petition,  the  names  of  the  parties  thereto,  the 
title  of  the  court,  and  the  time  aud  place  of  the  return  of  summons 
in  the  case,  and  a  description  of  the  premises  described  in  the  peti- 
tion ;  and  he  shall  also,  within  ten  days  of  the  first  publication  of 
such  notice,  send  a  copy  thereof  by  mail,  addressed  to  such  defendant 
whose  place  of  residence  is  stated  in  such  affidavit.  The  certificate 
of  the  clerk  that  he  has  sent  such  notice  in  pursuance  of  this  section 
shall  be  evidence,  (r) 

8.  The  notice  required  in  the  preceding  section  may  be  given  at 
any  time  after  the  filing  of  the  petition,  and  shall  be  published  at 
least  once  in  each  week  for  four  successive  weeks,  and  no  default  or 
proceeding  shall  be  taken  against  any  defendant  not  served  with 
summons,  and  not  appearing,  unless  forty  days  shall  intervene 
between  the  first  publication,  as  aforesaid^  and  the  first  day  of  the 
term  at  which  such  default  or  proceeding  is  proposed  to  be  taken,  (s) 

9.  When  it  appears  that  any  of  the  persons  required  to  be  made 
parties  defendant,  who  have  been  served  with  summons  or  notified 
as  aforesaid,  are  minors  under  the  age  of  twenty-one  years,  if  males, 
or  eighteen  years  if  females,  without  a  guardian  resident  in  this 
State,  or  are  persons  having  conservators,  or  where  such  guardian,  if 
any,  or  conservator  shall  not  be  personally  served  with  summons  or 

(r)  %  103,  R.  S.  1874,  p.  122.  (s)  §  104,  id. 

the  court-house    in   Shelbyville,  on,"  the  report  and  approval  of  the  sale,  a 

etc.     Objection    was    made    that  the  supplemental   petition    without    new 

notice  failed  to  show  the  county  and  notice  cannot  be  entertained.    Cromine 

State  where  the  application  was  to  be  v.  Tharp,  42  111.  120.     Leave  to  sell 

made.     The  notice  was  held  sufficient,  real  estate.  Where  an  order  of  a  county 

Moore  v.  Neil,  39  111.  256.     Where  the  court,  rendered  on  a   notice  that  the 

notice  specifies  that  the  administrator  executor  would  apply  at  the  December 

"  will  apply  at  the  December  term  of  term  of  the  court  for  license   to  sell 

the  county  court  of  the  county  of  Mer-  real  estate,  to  pay  debts,  is  not  made 

cer,  State  of  Illinois,  for  an  order,"  etc.,  at   that  time,  but  the  application  is 

and  the  notice  bears  date  "  September  made  and  the  order  rendered  on  a  peti- 

6,  1852,"  it  will  be  presumed  that  the  tion  filed,  without  further  notice,  at  the 

application    would   be    made   at    the  next  February  term,  it  is  not  binding 

December  term,  A.  D.  1852.     Finch  v.  on  the  heirs  for  want  of  notice.  Morrit 

Sink,  46  111.  169.     Sale  of  additional  v.  Hogle,  37  111.  150.     So  also  in  appli- 

land.     Where  the  original  proceeding  cation  of  administrator  to  county  court, 

had  terminated  at  a  former  term,  by  Schnell  v.  City  of  Ghicago,  38  111.  383. 


198  REAL  ESTATE   IN    ADMINISTRATION.  [CH.  Tli. 

Through  the  administrator. 

shall  not  appear,  the  court  shall  appoint  a  guardian  ad  Utem,  who 
shall  appear  and  defend  in  behalf  of  such  minors,  and  be  allowed 
such  compensation  as  may  be  fixed  by  the  court.(£) 

10.  Upon  hearing  the  cause  upon  the  issues  formed  or  taken,  the 
court  shall  hear  and  examine  the  allegations  and  proofs  of  the  par- 
ties and  of  all  other  persons  interested  in  the  estate  who  may  appear 
and  become  parties ;  and  if,  upon  due  examination,  the  court  shall 
find  that  the  executor  or  administrator  has  made  a  just  and  true 
account  of  the  condition  of  the  estate,  and  that  the  personal  estate 
of  the  decedent  is  not  sufficient  to  pay  the  debts  against  such  estate. 
the  court  shall  ascertain,  as  nearly  as  can  be,  the  amount  of  defi- 
ciency, and  how  much  of  the  real  estate  described  in  the  petition  it 
is  necessary  to  sell  to  pay  such  deficiency,  with  the  expenses  of  ad- 
ministration then  due  or  to  accrue,  and  make  a  decree  for  the  sale 
thereof:  PrQvided,  that  where  any  houses  and  lots,  or  other  real 
estate,  are  so  situated  that  a  part  thereof  cannot  be  sold  without 
manifest  prejudice  to  the  heirs,  devisees  or  owner,  the  court  may 
order  the  sale  of  the  whole  or  such  part  as  it  may  deem  best ;  and 
the  overplus  arising  from  such  sale  shall  be  distributed  among  the 
heirs  and  devisees,  owners,  or  such  other  person  as  may  be  entitled 
thereto.  (?/) 

In  such  proceedings,  the  court  may  order  the  lands  to  be  sur- 
veyed and  subdivided,  and  a  plat  to  be  made  of  the  same.  The 
costs  are  taxed.  (Cothran's  Annotated  Statutes,  p.  1088.) 

(£)  %  105,  Coth.  Stats.,  75.  Answer  the  estate.  He  should  be  licensed  to 

of  guardian  not  sufficient.  In  an  ap-  sell  as  much  as  may  be  required  to  pay 

plication  for  the  sale  of  real  estate  to  the  debts  of  the  estate.  Morris  v. 

pay  debts,  the  answer  of  the  guardian  Hogle,  37  111.  150.  A  decree  on  a 

ad  Utem  is  not  a  sufficient  foundation  petition  by  an  administrator  for  the 

for  an  order  of  sale.  The  record  should  sale  of  lands,  directed  the  sale  of 

show,  further,  that  the  court  heard  the  whole  of  the  land,  or  so  much 

proof  which  satisfied  it  of  the  truth  of  thereof  as  would  pay  the  debts.  Held 

the  allegations  of  the  petition.  Frid-  to  be  sufficient ;  and  further,  that  it 

ley  v.  Murphy,  25  111.  146.  was  unnecessary  to  state  therein  the 

(«)  §  106,  id.  When  and  how  ordered,  particular  interest  the  deceased  had  in 

The  act  of  1827  did  not,  like  the  act  of  the  land  ordered  to  be  sold.  Bowies' 

1829,  require  that  an  application  to  sell  Heirs  v.  Rouse,  Adm'r.,  3  Gilm.  409. 

real  estate  by  administrators  should  be  Where  an  administrator  de  bonis  non 

made  to  the  circuit  court  of  the  county  dies  after  he  obtained  an  order 

in  which  administration  was  granted,  to  sell  real  estate,  his  successor 

Under  that  act,  an  application  to  the  should  perfect  the  sale;  and  if  his 

circuit  court  of  the  county  in  which  authority  be  doubted,  or  if  he  needs 

the  real  estate  was  situated  was  suffi-  advice,  a  court  of  equity,  and  not  a 

cieut.  Smith  v.  Httemun,  1  Scam.  323.  court  of  law,  is  the  proper  resort. 

It  is  error  for  the  court  to  license  an  Baktr  v.  Bradsby,  23  111.  632.  Not  in 

executor  to  sell  so  much  real  estate  as  chancery.  A  proceeding  by  an  adniiu- 

he  may  deem  for  the  best  interest  of  istrator  to  sell  real  estate  is  not  a 


CH.  VII  ]  REAL   ESTATE   IX   ADMINISTRATION. 


199 


Through  the  administrator. 


11.  All  such  sales  of  real  estate  shall  be  made  and  conveyances 
executed  for  the  same  by  the  executor  or  administrator  applying  for 
such  order,  and  shall  be  valid  and  effectual  against  the  heirs  and 
devisees  of  such  decedent,  and  all  other  persons  claiming  by, 
through  or  under  him  or  them.  In  case  of  the  death  of  the  execu- 
tor or  administrator  applying  for  an  order  of  sale  before  conveyance 
is  made,  the  administrator  de  bonis  non  shall  proceed  in  the  premises 
and  make  conveyance  in  the  same  manner  as  if  he  had  originally 
applied  for  such  order,  which  conveyance  shall  be  good  and  valid. 

The  statute  does  not  require  the  approval  of  the  sale  as  a 
necessary  step  to  vesting  title  in  the  purchaser,  (v) 

(0)  Moffitt  v.  Moffitt,  69  111.  641. 


chancery  proceeding.  Moline  Water 
Power  &  Manuf.  Co.  v.  Webster,  26  111. 
233  ;  Slwemaie  v.  Lockridge,  53  id.  503. 
Order — credit.  An  order  for  the  sale 
of  the  real  estate  of  the  decedent  must 
specify  whether  it  shall  be  sold  for 
cash  or  on  a  credit,  and  on  what  credit. 
Shoemate  v.  Lockridge,  53  111.  503. 
Administrator's  sale — what  title  passes. 
A  purchaser  of  laud  at  an  administra- 
tor's sale  acquires  only  such  title  as 
was  then  vested  in  the  heirs  of  the 
intestate.  So,  if  the  land  was  subject 
to  the  lien  of  a  prior  judgment  against 
the  grantor  of  the  intestate,  the  pur- 
chaser will  take  the  title  with  that  in- 
firmity. Walden  v.  Gridley,  36  111.  523. 
The  doctrine  of  caveat  emptor  applies 
to  such  sales,  and  the  purchaser  will 
be  presumed  to  have  examined  the 
records  in  relation  to  the  title,  and  if 
he  neglects  to  do  so,  he  must  abide  the 
consequences  of  his  omission.  Walden 
v.  Gridley,  36  111.  523 ;  McConnell  v. 
Smith,  39  id.  279 ;  Bingham  v.  Maxey, 
15  id.  295.  See  Moore  v.  Neil,  39 
id.  256  ;  McConnell  v.  Smith,  id.  279  ; 
Shoemate  v.  Lockridge,  53  id.  503. 
Sale — must  follow  the  order.  Where 
an  order  of  court  directs  the  manner  of 
sale  of  real  estate  of  a  deceased  per- 
son, it  is  the  duty  of  the  executor  or 
administrator  to  conform  strictly  to  its 
requirements.  Reynolds  \~.  Wilson,  15 
111.  394.  May  be  on  credit.  A  court 
may,  if  deemed  beneficial  to  the  estate, 
order  the  sale  by  an  executor  or  admin- 
istrator to  be  on  credit.  Reynolds  v. 
Wttson,  15  111.  394.  Where  an  admin- 


istrator made  a  bond,  and  subsequently 
a  conveyance,  which  did  not  recite  the 
power  to  sell,  nor  that  the  estate  be- 
longed to  the  decedent:  Held,  that  the 
deed  did  not  operate  to  pass  the  title 
of  the  decedent.  Davenport  v.  Young 
et  ux.,  16  111.  549.  Report  of  sale 'is  not 
necessary  to  the  validity  thereof,  as  to 
purchasers.  Moore  v.  Neil,  39  111.  256. 
What  is  a  reasonable  time  within 
which  the  heir  should  apply  to  set 
aside  the  sale.  Kruxe  v.  Steffens,  47 
111.  112.  For  facts  held  to  show  a  col- 
lusion between  administrator  and  pur- 
chaser, and  invalidating  the  title  in  the 
hands  of  a  party  having  notice.  Lock- 
wood  v.  Mitts,  39  111.  603.  Proceeds. 
Under  ^proper  circumstances,  a  court 
of  equity  will  provide  for  the  admini- 
stration of  assets  in  cases  of  intestacy. 
In  doing  so,  the  court  should  have  all 
the  creditors  before  it,  and  make  such 
disposition  of  the  property  as  is  re- 
quired by  the  statute  respecting 
estates.  Vansycle  v.  Richardson,  13  111. 
171.  Conveyance.  The  court  will  al- 
low and  compel  an  administrator  to 
amend  a  defective  deed.  Thorp  v. 
McCullum,  I  Gilm.  614.  Where  a  sale 
has  been  regularly  and  fairly  made  by 
an  administrator,  under  an  order  of 
court,  for  a  valuable  consideration,  and 
the  deed  executed  by  one  administra- 
tor only  .where  there  are  two,  the  court 
will  not  permit  advantage  to  be  taken 
of  such  defective  execution  of  a  power, 
but  will  compel  the  co-administrator  to 
join  in  the  execution  of  the  power.  If 
it  were  a  mere  power,  the  court  would 


200  REAL   ESTATE   IN   ADMINISTRATION.  [CH.  VII. 

Through  the  administrator. 

12.  No  lauds  or  tenements  shall  be  sold  by  virtue  of  any  such 
order  of  the  county  court  unless  such  sale  is  at  public  vendue,  and 
between  the  hours  of  ten  o'clock  in  the  forenoon  and  five  o'clock 
of  the  afternoon  of  the  same  day  ;  nor  unless  the  time,  place  and 
terms  of  holding  such  sale  were  previously  published  for  the  space 
of  four  weeks,  by  putting  up  notices  thereof  in  at  least  four  of  the 
most  public  places  in  the  county  where  such  real  estate  shall  be 
sold,  and  also  by  causing  a  similar  notice  thereof  to  be  published  four 
successive  weeks  prior  to  the  sale  in  some  newspaper  published  in 
such  county,  or,  if  there  be  no  such  newspaper,  then  in  such  other 
newspaper  in  this  State  as  the  court  shall  direct;  nor  unless  such  real 
estate  shall  be  described  with  common  certainty  in  such  notices. 
And  if  any  executor  or  administrator,  so  ordered  to  make  sale  of 
any  real  estate,  shall  sell  the  same  Contrary  to  the  provisions  of  this 
act,  he  shall  forfeit  and  pay  the  sum  of  five  hundred  dollars,  to  be 
recovered  by  action  of  debt,  in  the  name  of  THE  PEOPLE  OF  THE 
STATE  OF  ILLINOIS,  for  the  use  of  any  person  interested,  who  may 
prosecute  for  the  same:  Provided,  that  no  such  offense  shall  affect 
the  validity  of  such  sale  :  And  provided,  further,  that  such  execu- 
tor or  administrator  may  sell  the  same  on  a  credit  of  not  less  than 
six  nor  more  than  twelve  months,  by  taking  note,  with  good  per- 
sonal security  and  a  mortgage,  or  sale  mortgage  on  the  premises 
sold,  to  secure  the  payment  of  the  purchase-money.  It  shall  be 
the  duty  of  the  executor  or  administrator  making  such  sale,  on  or 
before  the  first  day  of  the  next  term  of  the  court  thereafter,  to  file 
in  the  office  of  the  clerk  of  said  court  a  complete  report  of  said  sale, 
giving  a  description  of  the  premises  sold,  to  whom,  where  and  upon 
what  terms  sold  and  a  general  statement  of  the  manner  in  which 
the  terms  of  the  decree  were  executed.  Any  person  interested  in 
the  premises  sold,  and  any  creditor  of  the  estate,  may  file  exceptions 
to  such  report,  and  upon  the  hearing  thereof  the  court  may  approve 
such  report  and  confirm  the  sale,  or  disapprove  the  same  and  order 
the  premises  to  be  resold. 

The  power  to  sell  cannot  be  delegated  by  the  executor  or  admin- 
istrator to  another.  If  he  be  not  present  the  sale  will  not  meet 

not ;  but   where  there  is  a  duty  and  decree  of  court,  cannot  be  excluded  as 

trust   to   be  performed  by  the  poper  evidence   because   the   probate   court 

exercise  of  the  power,  the  court  will  erred  in  granting  him  letters.     Wight 

compel  it.      Thorp    v.    McCullum,  1  v.  Wallbaum,    39  111.  555;  Schnell  v. 

Gilm.  614.    In  an  action  of  ejectment,  City  of  Chicago,  38  id.  383. 
an  administrator's  deed,  made  under  a 


CH.  VII.]  REAL   ESTATE   ADMINISTRATION.  201 

Through  the  administrator. 

judicial  sanction.     Chambers   v.  Jones,  72    111.  275  ;  Sebastian    \. 
Johnson,  id.  282 ;   Kellogg  v.  Wilson,  89  id.357.(w) 

13.  When  real  estate  is  sold,  the  moneys  arising  from  such  sale 
shall  be  received  by  the  executor  or  administrator  applying  for  the 
order  to  sell,  and  shall  be  assets  in  his  hands  for  the  payment  of 
debts,  and  shall  be  applied  in  the  same  manner  as  assets  arising  from 
the  sale  of  personal  property.  (2) 

14.  In  all  cases  where  a  decedent  is  seized  of  a  legal  or  equitable 
title  to  real  estate,  the  payment  whereof  has  not  been  completed,  and 
the  estate  of  such  decedent  is  unable  to  make  complete  payment 
therefor,  with  advantage  to  such  estate,  the  administrator  or  executor 
may  sell  or  dispose  of  such  real  estate  upon  the  order  of  the  county 
court,  and  the  money  arising  from  such  sales  shall  be  assets  in  the 
hands  of  such  executor  or  administrator,  as  in  other  cases.     But  in 
all  cases  where  the  estate  of  any  such  decedent  shall  be  solvent,  and 
such  lands  as  aforesaid  may  be  paid  for  without  prejudice  to  the 
creditors,  heirs-  or  devisees  of  the  estate,  the  executor  or  adminis- 
trator shall  complete  the  payment  for  the  same  out  of  the  proceeds 
of  the  personal  property,  in  the  name  of  the  heirs  or  legal  represen- 
tatives of  the  decedent  entitled  thereto ;  and  he  shall  be  allowed  a 
credit  for  the  amount  of  such  payments,  and  all  reasonable  expenses 
incurred  in  making  the  same,  upon  final  settlement  of  such  estate : 
Provided,  that  the  provisions  of  this  section  shall,  in  nowise,  inter- 
fere with  the  provisions  of  any  last  will  or  testament. (y) 

15.  THE  PRACTICE.    The  proceeds  of  sale  are  declared  to  be  assets 
in  the  hands  of  the  administrator. (z)     The  statute,  in  effect,  reserves 
a  lien  on  the  lands  of  an  intestate,  to  secure  the  payment  of  any 
sxcess  of  indebtedness  beyond  the  proceeds  of  the  personal  estate. 
This  lien  is  to  be  enforced  by  the  administrator  for  the  benefit  of 
creditors  generally.(a)     The  real  estate  descends  to  the  heir  with  this 
charge  resting  upon  it.     He  cannot  incumber  or  alien  it,  to  the  preju- 
dice of  the  rights  of  creditors.(J) 

Again,  when  special  proceedings  are  authorized,  by  which  the  real 
estate  of  one  may  be  divested  and  transferred  to  another,  every 
material  step  in  the  course  of  the  proceedings  must  be  pursued. (c) 

(ir)  Cothran's  Armo'd  Stat.  76.  §  108.  (6)  Vansyde  v.   Richardson,  13   111. 

(x)  $  109,  id.  171 ;  4  Kent's  Com.  419,421  ;  Meyer 

(y)  §  110.  id.,  77.  v.  McDougal,  47  111.  278. 

(z)  %  109,  id.,  76.  (c)  Reynolds  v.  Wilson,  15  111      394. 

(a)  See  chap,  x,  infra.  See  Botsf&rd  v.  O 'Conner,  57  id.  72. 

26 


202  REAL   ESTATE   IX   ADMINISTRATION.  [CH.  VII. 

Through  the  administrator. 

A  deficiency  of  assets  to  pay  the  indebtedness  of  the  estate  must 
first  exist,  to  authorize  the  sale.  This  deficiency  should  appear  from 
the  records  of  the  county  court.  The  court  to  which  the  petition 
for  the  sale  is  addressed  should  be  advised,  by  the  best  evidence,  of 
the  amount  of  indebtedness  and  assets,  so  as  to  determine  how  much 
of  the  real  estate  should  be  subjected  to  sale. 

This  evidence  is  the  just  and  true  account  of  the  personal  estate 
and  debts,  required  by  section  ninety-eight  to  be  made,  by  the  execu- 
tor or  administrator,  to  the  county  court,  and  which  must  be  filed 
in  that  court.  The  following  form  of  account  may  be  used. 

16.  ACCOUNT   OF   PERSONAL  ESTATE   AND   DEBTS. 

A  just  and  true  account  of  the  personal  estate  and  debts  of  A  B,  late  of 
county,  deceased. 

PERSONAL  ESTATE. 

The  undersigned,  administrator  of  A  B,  deceased,  charges  himself  as  fol- 
lows : 

DB. 

To  amount  of  Sale  Bill,  all  collected $500  00 

"         collected  of  A  B  on  note 50  00 

"        of  C  D  on  account 90  00 

"         (and  so  on,  specifying  the  amount  of  money  received,  from 

whom  received,  etc.)  

Total  amount  received  from  all  sources $640  00 


Contra. 

The  administrator  credits  himself  with  the  following  disbursements,  made 
pursuant  to  order  of  court,  as  appears  by  receipts  herewith  filed : 

1872.  Nov.    1.  By  cash  paid  to  C.  T.  Dutton $75  00 

"      Nov.  16.          "              "    J  K,  on  his  claim 475  00 

"      Dec.    2.          "             ".  MJ,         " 7800 

"      Dec.    2.          "             "    J.  J.  S.,  clerk's  fees 1300 

Total  amount  paid  out $640  00 


Amount  of  Debts  due  said  Estate,  not  collected.    (See  Inventory.) 

Note  of  N  0  (doubtful) $45  68 

Account  of  C  B  (desperate) 70  00 

Note  of  H  Or,  discovered  after  filing  inventory,  dated  Oct.  1,  1872, 

payable  on  demand  (desperate) 25  00 

Accountof  X  Y  (desperate) 13  25 

Total  amount  due  the  Estate,  doubtful  and  desperate $153  93 


CH.  VII.]  KEAL   ESTATE   Ilf   ADMINISTBATIOJST.  203 

Througli  the  administrator. 

Amount  of  Claims  allowed  aginst  the  Estate,  as  appears  from  the  Records  of  the 

County  Court. 

EH $690  00 

L  S  . .  380  00 


Amount  forward $1,070  00 


Brought  forward $1,070  00 

L  K 890  00 

L  M 105  00 

W  C 100  00 

JK 1,00000 

M  R  (and  so  on,  stating  all  claims,  whether  allowed  or  not). 


Total  amount  of  claims  allowed $3,165  00 

Estimated  amount  of  liabilities  of  estate  not  yet  allowed,  but  proba- 
bly valid 800  00 

Total  indebtedness  of  estate $3,965  00 

Deducting  amount  paid  out 640  00 

$3,325  00 

Deduct  probable  amount  that  maybe  collected  or  received  on  doubt- 
ful and  desperate  debts 75  00 

Leaving  as  deficit  of  assets $3,250  00 


I,  C  D,  administrator  of  the  estate  of  A  B,  deceased,  do  certify  that  the  fore- 
going is  a  true  and  just  account  of  the  personal  estate  and  the  debts  of  said 
deceased,  as  far  as  I  have  been  able  to  discover. 

C  D, 

Dee.  3, 18    .  Administrator  of  A  B. 

The  administrator  must,  before  applying  for  a  sale  of  the  real 
estate,  file  such  an  account  in  the  county  court,  have  it  approved  and 
recorded.  It  then  will  be  evidence — a  proper  basis  for  a  valid  sale 
of  the  real  estate.  A  true  account  requires  something  more  than  a 
general  statement  of  the  amount  of  assets  and  indebtedness  of  the 
estate — a  statement  of  the  particular  debts  and  credits. 

Before  application  to  sell  the  real  estate,  the  inventory,  appraise- 
ment bill  and  sale  bill  should  also  be  filed  in  court,  and  all  the  avail- 
able personal  estate,  or  its  proceeds,  applied  toward  the  payment  of 
the  debts  of  the  decedent. 

The  following  then  are  the  necessary  proceedings  preliminary  to 
an  order  of  sale  of  real  estate  : 

First.  The  filing  of  the  inventory,  appraisement  bill,  and  sale  bill. 


204  REAL  ESTATE   IN   ADMINISTRATION.  [CH.  VII. 

Through  the  administrator. 

Second.  Rendering  a  just  and  true  account  of  the  personal  estate 
and  debts  of  the  deceased. 

Third.  The  petition  and  the  evidence  required. 

Section  103,  of  the  Statute  of  Wills,  required  a  notice  and  was  re- 
pealed by  the  12th  section  of  the  law  of  1857. 

The  decision  in  Bowies'  Heirs  v.  Rouse,  Adm'r,(d)  prepared  the 
way  for  the  law  of  1857,(e)  substantially  re-enacted  in  1872.(/) 

The  following  form  of  petition  may  be  used : 

PETITION   FOB   SALE   OP  REAL   ESTATE. 

STATE  OP  ILLINOIS,  )  In  the  County  Court  of  county,  to 

County,     f  ss  term,  18    . 

To  the  Hon.  ,  the  judge  of  said  court  : 

The  petition  of  C  D,  of  said  county  of  ,  administrator  of  the  goods, 

chattels  and  effects  of  A  B,  late  of  said  county,  deceased,  intestate,  respectfully 
represents : 

That  your  petitioner  was,  on  the  day  of  ,  A.  D.  18    ,  appointed  bj 

the  county  court  of  county  aforesaid,  administrator  of  the  goods  and  chat- 
tels, rights  and  credits  of  said  intestate,  as  will  appear  by  letters  of  administra- 
tion, ready  here  in  court  to  be  shown. 

And  your  petitioner  further  shows  that  he  has  filed  in  the  county  court  of 
said  county,  as  such  administrator,  his  inventory,  and  the  appraisement  bill 
and  sale  bill,  of  the  estate  of  said  intestate,  as  required  by  law,  and  has  also 
rendered  to  said  court  a  j  ust  and  true  account  of  the  personal  estate  and  debts 
of  the  said  deceased,  a  certified  copy  of  which  account  is  hereto  annexed,  and 
made  part  of  this  petition,  market  "  Exhibit  A."  That  the  personal  estate  of 
the  said  intestate  is  insufficient  to  pay  the  just  claims  against  the  said  estate, 
as  will  appear  by  reference  to  the  said  account,  and  also  (here  set  forth  any 
other  matter  of  import  for  the  court  to  know  in  the  case.} 

And  your  petitioner  shows,  more  particularly,  that  the  amount  of  money 
received  by  your  petitioner  as  such  administrator,  from  all  sources,  is  six  hun- 
dred and  forty  dollars,  as  will  appear  from  said  account  (Exhibit  A),  and 
;  that  he  has  paid  out,  by  order  of  said  court,  on  claims  allowed,  the  sum 
of  six  hundred  and  forty  dollars,  as  will  also  appear  from  said  exhibit ;  that  he 
has  faithfully  applied  such  part  of  the  personal  estate  and  the  proceeds  thereof 
as  have  come  to  his  possession  toward  the  payment  of  the  debts  of  the  said 
deceased,  which  will  more  particularly  and  fully  appear  by  reference  to  said 
Exhibit  A,  and  the  said 

And  your  petitioner  further  represents  unto  your  Honor,  that  the  claims 

allowed  against  and  the  liabilities  of  the  said  estate  amount  to  the  sum  of 

dollars,  as  will  also  appear  by  said  exhibit  and  ,  of  which  he  has 

paid  six  hundred  and  forty  dollars ;  that  there  are  doubtful  and  desperate  claims 

in  his  hands  in  favor  of  said  estate  amounting  to  one  Jiundred  find  forty-three 

(d)  3  Gilm.  419.  (/)  §§  97-108,  R.   S.   1874.  pp.  121- 

(e)  Gibson  v.  Roll,  27  111.  90.  124. 


CH.  VII. j  EEAL   ESTATE   IN"   ADMINISTKATION.  205 

Through  the  administrator. 

dollars,  of  which  he  will  probably  collect  or  receive  the  sum  of  dollars, 

after  placing  which  as  of  the  assets,  there  is  a  deficiency  of  personal  property 
to  pay  the  debts  of  the  deceased,  all  which  will  more  fully  and  particularly 
appear  from  said  account  marked  "  Exhibit  A,"  and  said 

And  your  petitioner  further  represents,  that  the  said  intestate  died  seized  in 
fee  of  the  following  described  real  estate,  situated  in  the  said  county  of  , 

and  State  of  Illinois,  to  wit :  The  north-east  quarter  of  Section  No.  ,  in 

Township  No.  ,  north  of   Range  No.  ,  east  of   the  4th  principal 

meridian ;  that  the  said  real  estate  is  reasonably  worth  the  sum  of  $ 

And  your  petitioner  further  represents  that  the  said  intestate  died,  leaving 
him  surviving  his  widow  J  B,  and  the  following  named  children  (here  insert 
names  of  children),  who  are  his  only  heirs  at  law  ;  that  the  said  and  are 
minors  under  the  age  of  twenty-one  years,  and  have  no  guardians  residing  in 
said  county.  (Here  insert  the  names  of  minor  children  who  have  guardians, 

naming  such  guardians ;  also  the  names  of  devisees;  also  the  names  of  actual 
occupants,  if  known,  if  not  known,  then  make  them  parties  by  the  name  of  "  un- 
known parties  " — all  of  whom,  to  wit  (naming  widow,  heirs,  devisees,  minors  hav- 
ing guardians,  and  guardians,  and  those  not  having  such,  and  occupants),  are 
hereby  made  parties  hereto,  and  are  interested  herein. 

Wherefore,  in  consideration  of  the  premises,  your  petitioner  prays  that  the 
said  (here  naming  them  again),  may  be  summoned  and  required  to  answer  all 
the  matters  herein  stated  and  charged,  though  not  on  oath,  the  necessity  of  an- 
swer under  oath  being  hereby  expressly  waived,  and  for  the  order  and  decree  of 
this  honorable  court,  granting  him  leave  to  sell  the  said  real  estate,  or  so  much 
thereof  as  may  be  necessary  to  pay  the  debts  of  the  said  intestate,  and  that  a 
guardian  ad  litem  be  appointed  for  the  said  minor  heirs,  and  for  such  other  or 
further  order  or  decree  in  the  premises  as  may  be  deemed  necessary,  pursuant 
to  the  statute  in  such  case  made  and  provided,  and  the  custom  and  practice  of 
this  honorable  court. 

And  your  petitioner  will  ever  pray,  etc. 

C  D, 
Administrator  of  A  B,  deceased. 

The  usual  chancery  summons,  mutatis  mutandis,  will  be  sufficient, 
stating  the  nature  of  the  suit. 

An  affidavit  is  required  to  be  made  in  three  distinct  cases : 

(1.)  Where  a  defendant  is  a  non-resident  of  the  State,  or  has  gone 
out  of  it,  or,  on  due  inquiry,  cannot  be  found. 

(2.)  Where  he  is  concealed  within  the  State,  so  that  process  cannot 
be  served  on  him. 

(3.)  Where  defendants  are  unknown. 

On  filing  the  necessary  affidavit,  a  notice  like  the  following  may 
be  published,  as  directed : 


206  EEAL   ESTATE   IN   ADMIXISTRATIOX.  [CH.  VII. 

Through  the  administrator. 

NOTICE   OF  PENDENCY  OF  SUIT. 

STATE  OF  ILLINOIS,)  In  County  Court. 

County.     J  **  To  the  term,  A.  D.  18    . 

C  D  }  Petition  for  order  of  sale  of  real  estate,  to  pay  the 

v.  [•         debts  of  the  estate  of  A  B,  deceased,  late  of  ,  in- 

E  F,  Q  H,  IJ,  etc. )          testate. 

Public  notice  is  hereby  given  to  the  said  E  F,  of,  etc.,  that  a  petition  has 
been  filed  in  the  office  of  the  clerk  of  said  court  in  the  above-entitled  cause, 
by  C  D,  administrator  of,  etc.,  against  the  defendants  above  named,  praying  for 
sale  of  the  real  estate  of  said  A  B,  deceased,  which  is  described  as  follows : 
(Here  describe,  with  legal  certainty,  the  lands  to  be  affected),  to  pay  debts,  and  that 
an  affidavit  has  been  filed  in  said  office,  stating  that  you,  the  said  E  F,  are  a  non- 
resident of  this  State  (or  any  of  the  grounds  above  stated),  and  was  such  non-res- 
ident at  the  time  of  the  commencement  of  this  action,  and  that  a  summons  has 
been  issued  in  this  cause,  returnable  on  the  first  day  of  the  next  term  of  said 
court,  to  be  holden  at  ,  on  the  third  Monday  of  ,  A.  D.  18  .  Now,  unless 
you,  the  said  E  F,  shall  be  and  appear  at  said  court,  on  the  said  first  day  of 
the  term  thereof,  to  be  holden  as  above,  and  plead  to  and  answer  said 

petition,  the  said  petition  will  be  taken  as  confessed  by  you,  the  said  E  F,  and 
a  decree  for  sale  of  said  real  estate  as  prayed  will  be  entered  for  payment  of 
said  debts. 

PT      -,      Witness  G  H,  clerk  of,  etc.,  and  the  seal  of  said  court,  this        day 

L1"  8>J  of  ,  A.  D.  18    . 

The  proceedings  in  matters  of  process  compelling  appearance  and 
preparing  the  issues  are  prescribed  to  be  according  to  the  chancery 
practice. 

We  shall  give  a  complete  record  of  an  application  contested  at 
every  step  further  on  under  the  PROBATE  RECORD,  (g) 

Rules  and  orders  may,  after  the  parties  are  in  court,  be  made  with 
great  facility  as  occasion  requires. 

In  these  proceedings,  from  their  inception  to  their  close,  the 
advice  or  judgment  of  the  county  judge  having  jurisdiction  should 
be  taken  at  every  turn.  He  is  the  arbiter,  the  impartial  conservator 
of  these  estates.  If  the  application  be  resisted,  then  notice  of  every 
step  in  the  cause  should  be  given,  unless  in  the  minor  matters  of 
the  suit. 

Counsel  will  be  required,  and  the  admirable  decisions  of  our 
supreme  court  in  chancery  and  in  administration  and  conservation 
will  guide  to  a  correct  course  of  procedure  in  such  cases.  (Ji) 

The  county  judge  sitting  quite  like  a  chancellor  in  cases  involving 
these  high  trusts,  and  the  rights  and  property  of  the  orphan,  the 
widow,  the  absent,  the  unknown,  and  the  incapacitated  —  those 

(ff)  See  Hill's  Chan.  Pr.,   Process,        (h)  Hill's  Chan.  Pr.  6,  7. 
Pleadings,  etc. 


CH.  VII.]  KEAL   ESTATE   IX   ADMINISTRATION.  207 

Through  the  guardian. 

incapable  of  protecting  either  themselves  or  their  property,  is  an 
exercise  of  administrative  and  judicial  power,  equal  to  any  known  to 
the  court  of  chancery.  Such  provisions  indicate  the  wise  statesman- 
ship that  prompted  them,  and  the  confidence  in  our  lesser  courts 
which  the  integrity  and  ability  of  their  learned  judges,  from  the 
earliest  period  of  our  judicial  history,  have  inspired. 

For  our  idea  of  the  form  which  such  proceedings  should  wear, 
and  the  necessary  steps  to  be  taken  throughout  such  a  course,  we 
would  respectfully  refer  the  reader  to  the  probate  record  further 
on.(i) 

From  the  filing  of  the  petition  for  forms,  see  chapter  xiv,  infra. 


SECTION"  III.  —  ADMINISTRATION  OVER   REAL  ESTATE  THROUGH   THE 

GUARDIAN. 

1.  The  guardian  may  lease  the  ward's  real  estate  with  the  approval  of  the 

court. 

2.  He  may  by  leave  of  court  mortgage  the  same. 

3.  Petition  for  order  must  be  filed  however. 

4.  Foreclosure  of  such  mortgages  only  to  be  made  by  petition  to  the  court  in 

which  letters  of  guardianship  were  granted. 

5.  Decree  of  strict  foreclosure  not  to  be  entered,  and  redemption  as  in  case  of 

judgments  prescribed. 

6.  Proceedings  prescribed  for  the  sale  of  the  ward's  real  estate  ;  petition ; 

venue,  etc.,  etc. 

7.  The  petition ;  its  requisites,  to  be  verified  and  filed. 

8.  Notice  to  be  published  and  served. 

9.  Cause  to  be  docketed  and  proceed  as  if  a  case  in  chancery.    (See  Hill's 

Chan.  Pr.) 

10.  The  sale,  notice  of  the  time  and  place  to  be  given  ;  sale  may  be  on  credit ; 

credit  how  given,  securities  required. 

11.  Report  of  sale  to  be  forthwith  made  and  approved  and  recorded,  and  to 

vest  in  the  purchasers  the  title  of  the  property. 

12.  Guardian  to  account  for  proceeds  of  sales  of  real  estate  on  oath. 

13.  Duty  of  court  to  keep  the  securities  of  the  guardian  good. 

14.  Guardian,  if  insolvent  or  in  doubtful  circumstances,  may  be  required  ta 

give  to  his  securities  counter-securities. 

15.  The  practice  indicated. 

16.  Forms  for  pleadings,  affidavits,  process,  orders,  decrees,  etc.,  etc. 

17.  Foreign  guardians  may  sell  when. 

18.  And  under  like  process  and  procedure. 

(i)  See  chap,  xiv,  infra. 


HEAL   ESTATE   IN   ADMINISTBATION. 


Tlirougli  the  guardian. 


19.  Sales  to  invest  purchasers  with  the  title. 

20.  Foreign  guardians  must  give  security  for  costs,  before  commencing  any 

proceeding. 

1.  The  guardian  may  lease  the  real  estate  of  the  ward  upon  such 
terms  and  for  such  length  of  time,  not  extending  beyond  the  mi- 
nority of  the  ward,  as  the  county  court  shall  appro  ve.(/) 

2.  The  guardian  may,  by  leave  of  the  county  court,  mortgage  the 
real  estate  of  the  ward  fora  term  of  years  not  exceeding  the  minority 
of  the  ward,  or  in  fee  ;  but  the  time  of  the  maturity  of  the  indebted- 
ness secured  by  such  mortgage  shall  not  be  extended,  beyond  the 
time  of  minority  of  the  ward.(&) 

3.  Before  any  mortgage  shall  be  made,  the  guardian  shall  petition 
the  county  court  for  an  order  authorizing  such  mortgage  to  be 
made,  in  which  petition  shall  be  set  out  the  condition  of  the  estate, 
and  the  facts  and  circumstances  on  which  the  petition  is  founded, 
and  a  description  of  the  premises  sought  to  be  mortgaged.  (I) 

4.  Foreclosures  of  mortgages  authorized  by  this  act  shall  only  be 
made  by  petition  to  the  county  court  of  the  county  where  letters  of 
guardianship  were  granted,  or  in  case  of  non-resident  minors,  in  the 
county  in  which  the  premises,  or  some  part  thereof,  are  situated,  in 
which  proceeding  the  guardian  and  ward  shall  be  made  defendants  ; 
and  any  sale  made  by  virtue  of  any  order  or  decree  of  foreclosure  of 
such  mortgage  may,  at  anytime  before  confirmation,  be  set  aside  by 
the  court  for  inadequacy  of  price,  or  other  good  cause,  and  shall  not 
be  binding  upon  the  guardian  or  ward  until  confirmed  by  the 
court.(w) 

5.  No  decree  of  strict  foreclosure  shall  be  made  upon  any  such 
mortgage,  but  redemption  shall  be  allowed  as  is  new  provided  by 
law  in  cases  of  sales  under  executions  upon  common-law    judg- 
ments,^) that  is,  within  twelve  months. 

6.  On  the  petition  of  the  guardian,  the  county  court  of  the  county 
where  the  ward  .resides,  or  if  the  ward  does  not  reside  in  the  State, 
of  the  county  where  the  real  estate,  or  some  part  of  it,  is  situated, 
may  order  the  sale  of  the  real  estate  of  the  ward,  for  his  support 
and  education,  when  the  court  shall  deem  it  necessary,  or  to  invest 
the  proceeds  in  other  real  estate,  or  for  the  purpose  of  otherwise 
investing  the  same,  (o)     Provided,  the  said  county  court  shall  make 

(j)  §  23,  R.  S.  1874,  p.  561.  (n)  %  27,  id. 

(k)  %  24,  id.  (o)  §  28,  as  amended  May  21,  1877  ; 

(0  S  25,  id.  Cothran's  Stats.,  1880,  771. 

(TO)  g  26,  R.  S.  1874,  p.  561. 


CH.  VII.]  EEAL   ESTATE   IN   ADMINISTRATION.  209 

Through  the  guardian. 

no  order  fora  sale,  under  said  petition,  until  the  said  guardian  shall 
have  executed  and  filed  a  bond,  payable  to  the  people  of  the  State 
of  Illinois,  with  at  least  two  sufficient  sureties,  to  be  approved  by 
the  court,  in  double  the  value  of  the  real  estate  by  said  petition 
sought  to  be  sold,  conditioned  for  the  due  and  faithful  accounting 
for  and  disposition  of  the  proceeds  of  all  real  estate  that  may  be 
sold  by  him  under  such  order,  in  the  manner  provided  by  law; 
which  bond  may  be  put  in  suit,  in  the  name  of  the  people  of  the 
State  of  Illinois,  to  the  use  of  any  person  entitled  to  recover  on  a 
breach  thereof,  and  damages  assessed  and  proceedings  had  thereon, 
as  in  other  cases  of  penal  bonds. 

7.  The  petition  shall  set  forth  the  condition  of  the  estate  and  the 
facts  and  circumstances  on  which  the  petition  is  founded,  and  shal 
be  signed  by  the  guardian  and  verified  by  his  affidavit,  and  shall  be 
filed  at  least  ten  days  before  the  commencement  of  the  term  of 
court  at  which  the  application  shall  be  made.(jo) 

8.  Notice  of  such  application  shall  be  given  to  all  persons  con- 
cerned, by  publication  in  some  newspaper  published  in  the  county 
where  the  application  is  made,  at  least  once  in  each  week  for  three 
successive  weeks,  or  by  setting  up  written  or  printed  notices  in  three 
of  the  most  public  places  in  the  county,  at  least  three  weeks  before 
the  session  of  the  court  at  which  such  application  shall  be  made. 
The  ward  shall  be  served  with  a  copy  of  such  notice  at  least  ten 
days  before  the  hearing  of  such  application,  (q) 

9.  Such  application  shall  be  docketed  as  other  causes,  and  the 
petition  may  be  amended,  heard  or  continued  for  further  notice,  or 
for  other  cause.     The  practice  in  such  cases  shall  be  the  same  as  in 
other  cases  of  chancery.(r) 

10.  The  court  shall  direct  notice  of  the  time  and  place  of  sale  to 
be  given,  and  may  direct  the  sale  to  be  made  on  reasonable  credit, 
and   require  such   security  of  the   guardian  or  purchaser  as  the 
interest  of  the  ward  may  require.  (s) 

11.  It  shall  be  the  duty  of  the  guardian  making  such  sale,  as  soon 
as  may  be,  to  make  return  of  such  sale  to  the  court  granting  the 
order,  which,  if  approved,  shall  be  recorded,  and  shall  vest  in  the 
purchaser  or  purchasers  all  the  interest  of  the  ward  in  the  estate  so 


(p)  %  29,  Cothran's  Stats.,  771.  (s)  §  32,  Cothran's  Stats.,  772. 

(q)  %  30,  id.  p.  772.  (t)  %  33,  id. 

(r)  %  31,  id. 


210  EEAL   ESTATE   IN   ADMINISTRATION".  [CH.  VII. 

Through  the  guardian. 

12.  An  account  of  all  moneys  and  securities  received  by  any 
guardian,  for  the  sale  of  real  estate  of  his  ward,  shall  be  returned 
on  oath  of  such  guardian  to  the  county  court  of  the  county  where 
letters  of  guardianship  were  obtained,  and  such  money  shall  be 
accounted  for,  and  subject  to  the  order  of  the  county  court,  in  like 
manner  as  other  moneys  belonging  to  such  minor.     In  case  of  sale 
for  re-investment  in  this  State,  the  money  shall  be   re-invested 
under  the  direction  of  the  court,  (u) 

13.  It  shall  be  the  duty  of  the  county  court,  at  each  accounting 
of  the  guardian,  to  inquire  into  the  sufficiency  of  his  sureties,  and  if 
at  any  time  it  has  cause  to  believe  that  the  sureties  of  a  guardian  are 
insufficient  or  in  failing  circumstances,  it  shall,  after  summoning 
the  guardian  if  he  be  not  before  the  court,  require  him  to  give 
additional  security.(v) 

14.  Upon  the  application  of  the  surety  of  any  guardian,  and  after 
summoning  the  guardian,  the  court  may,  if  it  believes  him  to  be 
insolvent  or  in  doubtful  circumstances,  require  him  to  give  counter 
security  to  his  sureties,  (w) 

15.  THE  PKACTICE  INDICATED.     See  chapter  xiv,  infra. 

16.  FORMS,  ETC.     See  chapter  xiv,  infra. 

17.  SALE  OF  REA.LTY  BY  FOREIGN  GUARDIAN.    "Where  any  person 
residing  in  any  other  State  of  the  United   States,  or  any  territory 
thereof,  shall  have  been  or  may  hereafter  be  appointed  guardian,  in 
the  State  or  territory  in  which  such  person  resides,  of  any  infant  or 
other  person  owning  real  estate  within  this  State,  not  having  any 
guardian  in  this  State,  it  shall  and  may  be  lawful  for  every  such 
guardian  to  file  his  or  her  petition  in  the  circuit  court  of  the  county 
in  which  said  real  estate,  or  the  major  part  thereof,  may  lie,  for  sale 
of  said  real  estate,  for  the  purpose  of  educating  and  supporting  such 
infant,  or  other  persons  under  guardianship,  or  for  the  purpose  of 
investing  the  proceeds  of  such  real  estate  in  such  manner  as  the 
court  which  appointed  such  guardian  may  order  and  direct;  and  the 
said  circuit  court  is  hereby  fully  authorized  and  empowered  to  order 
a  sale  of  such  real  estate  conformably  to  the  prayer  of  said  petition. 
Provided,  that  every  such  guardian  applying  for  such  sale  shall  file 
with  his  or  her  petition  an  authenticated  copy  of  his  or  her  letters 

(u)  |  34,  R.  S.  1874,  p.  562.  (w)  %  36,  R.  S.  1874,  p.  562. 

(«)  §  35,  id. 


CH.  VII.]  KEAL   ESTATE   IN   ADMINISTRATION.  211 

Through  the  guardian. 

of  guardianship.  And  provided,  further,  that  the  said  circuit  court 
shall  make  no  order  for  a  sale  under  said  petition  until  the  said 
guardian  shall  have  executed  and  filed  in  the  court  which  appointed 
said  guardian,  a  bond,  with  sufficient  security,  approved  by  said 
last-mentioned  court,  for  the  due  and  faithful  application  of  the 
proceeds  of  every  such  sale,  in  such  manner  as  the  said  last-men- 
tioned court  may  direct;  an  authenticated  copy  of  which  said  bond, 
and  the  approval  thereof,  shall  be  deemed  and  taken  by  the  circuit 
court  as  sufficient  evidence  of  the  execution  and  filing  of  the  same.(z) 

18.  Every  guardian,  applying  for  an  order  of  sale  under  the  fore- 
going section,  shall  be  required  to  give  notice  of  his  or  her  petition 
in  the  same  manner  as  is  now  required  by  law  in   cases  of  applica- 
tion for  sales  of  lands  belonging  to  minors  by  resident  guardians ; 
and  in  every  order  for  the  sale  of  real  estate  under  this  act,  it  shall 
be  the  duty  of  the  court  to  prescribe  the  terms  of  said  sale,  and 
the  notice  which  shall  be  given  thereof,  and  the  place  where  such 
sale  shall  be  made.(y) 

19.  All  sales  of  real  estate,  under  the  provisions  of  this  act,  are 
thereby  declared  to  be  good  and  valid;  and  all  deeds  executed  by 
such  guardian  to  the  purchaser  or  purchasers  under  such  sales  shall 
convey  to  and  vest  in  such  purchaser  or  purchasers  all  the  estate, 
right,  title  and  interest,  in  law  or  equity,  of  said  infant  or  others 
in  and  to  the  land  so  sold.(2)     If  the  court  authorizing  the  sale 
have  jurisdiction,  the  sale  will  not  be  invalidated  by  the  irregularity 
of  the  proceedings  of  the  guardian  in  executing  the  order  of  sale 
The  purchaser  is  not  bound  to  see  to  the  application  of  the  funds,  (a) 

20.  In  all  suits  and  petitions  by  non-resident  guardians,  they 
shall  give  a  bond  for  costs,  as  in  cases  of  other  non-residents.(J) 

A  subsequent  deed,  executed  by  a  guardian  for  the  purpose  of 
explaining  a  former  deed,  and  correcting  mistakes  therein,  made 
some  years  after  the  first  deed,  is  improper,  as  it  amounts  only  to 
the  declarations  of  the  guardian  made  when  he  could  not,  by  such 
declaration,  affect  the  interest  of  his  wards.  The  guardian's  power 
was  exhausted  when  he  had  made  the  sale  and  the  first  conveyance, 
and  his  acts  were  approved  by  the  court,  (c) 

WHEN  TITLE  INURES;  COVENANTS.    Where  a  ward  subsequently 

(a;)  §  47,  R.  S.  1874,  p.  563.  (a)  Mulford  v.  Beveridge,  78  111.  455 

(y)  §  48,  R.  S.  1874,  pp.  563,  564.  (J)  §50,  R.  S.  1874,  pp.  563,  564. 

(z)  §  49,  id.  (c)  Yming  v.  Lorain,  11  111.  625. 


212  EEAL   ESTATE   IN   ADMINISTRATION.  [CH.  VII. 

Through  the  guardian. 

acquires  from  the  government  of  the  United  States  a  patent  for  the 
premises  which  had  been  sold  by  his  guardians,  at  a  guardian's  sale, 
under  the  statute.  Held,  that  his  independent  title,  subsequently 
acquired,  did  not  inure  to  the  benefit  of  a  previous  purchaser  at  a 
guardian's  sale ;  nor  was  he  estopped  by  the  guardian's  deed  from 
setting  up  such  subsequent  title.  Held,  also,  that  the  guardian 
could  not  insert  any  covenants  in  the  deed  which  would  be  binding 
on  his  ward.  If  the  guardian  chooses  to  insert  covenants  in  the 
deed,  he  may  be  held  personally  upon  them,  and  to  him  alone  must 
the  grantee  look.(i) 

Upon  a  sale  of  land  by  a  guardian,  the  title  is  defective,  unless 
the  guardian  makes  a  report  of  his  proceedings,  and  has  the  same 
confirmed  by  the  order  of  the  court  authorizing  the  sale,  (c)  As  to 
what  stage  of  the  case  the  report  is  to  be  made,  the  statute  is 
silent,  (d) 

For  a  case  where  the  minors  were  held  to  be  estopped  from  at- 
tacking such  an  unconfirmed  sale.(e) 

CONFIRMING  SALES.  The  discretion  to  be  used  by  the  court,  in 
confirming  sales  of  guardians,  must  conform  to  established  princi- 
ples. (/) 

The  English  practice  of  opening  biddings  at  such  sales  is  not  a 
sufficient  cause  for  setting  aside  a  sale.(/) 

A  sale  by  a  guardian  of  his  ward's  land  will  not  be  sustained,  un- 
less it  be  shown  that  it  was  necessary  for  the  infant's  education  and 
support  And  applications  by  a  guardian,  for  the  sale  of  his  ward's 
real  estate,  must  be  made  in  the  county  where  the  ward  resides, 
although  the  estate  may  lie  in  a  different  county,  and  should  state 
affirmatively  such  residence. (g) 

A  guardian  must  follow  the  directions  of  the  probate  court;  and 
if,  on  an  order  being  made,  he  finds  he  has  no  funds,  he  may  then 
make  application  for  a  sale  of  his  ward's  land.(</)  . 

Minors  need  not  be  made  parties  to  a  proceeding  asking  an  order 
of  sale  of  their  property  for  their  support  and  education.  Such  an 
application  is  for  their  benefit,  and  not  adverse  to  them,  (h) 

(b)  Young  v.  Lorain,  11  111.  625.  (e)  Penn  v.  Heisey,  19  111.  295. 

(c)  Young    v.    Eeogh,    11   111.  642;  (/)  Ayres  v.  Baumgarten,\5  111.444. 
Ayres   v.   Baumgarten,    15    id.   444;  (g)  Loyd  v.  Malonel  23  111.  43. 
Young  v.  Dowling,  id.  481.      (Defect  (h)  Fitzgibbon  \ ,  Lake,  29  111.  165; 
ive  in  equity.)  Smith  v.  Race,  27  id.  387. 

(d)  Mulford  v.  Beveridge,  78  111.  455. 


CH.  VII.]  REAL   ESTATE    IN   ADMINISTRATION.  213 

Through  the  conservator. 

Where  the  legislature  authorizes  a  guardian  to  sell  the  land  of 
his  ward,  under  the  direction  and  sanction  of  the  judge  of  probate, 
a  sale  made  without  such  sanction  and  direction  is  void.(t) 

The  jurisdiction  of  the  circuit  court,  to  order  a  sale  of  the  real 
estate  of  a  ward,  on  the  application  of  the  guardian,  cannot  be 
questioned  collaterally  where  the  contingency  provided  for  by  the 
statute  existed.  And  all  objections  taken  to  the  notices  of  the  sale, 
posting  them,  and  other  matters  involved  in  the  adjudication  of 
the  circuit  court,  either  in  granting  the  order  of  sale  or  in  the  final 
order  confirming  the  report  of  the  guardian,  can  avail  nothing  in  a 
collateral  action.(/) 

Whether  one  or  two  guardians  named  in  a  will  had  authority  to 
apply  for  an  order  of  sale,  and  whether  the  sale  was  regular,  were 
questions  for  the  court  to  determine  where  the  application  was 
made,  and  cannot  be  inquired  into  collaterally. (k) 

An  order  entered  by  mistake,  dismissing  the  proceeding  after 
decree,  and  before  the  confirmation  of  sale,  would  not  vacate  the 
order  of  sale,  nor  revoke  the  authority  of  the  guardian. (k) 

The  only  power  a  guardian  has  over  his  ward's  lauds  is  to  lease 
the  same  upon  such  terms  and  for  such  length  of  time  as  the 
county  court  shall  approve.  He  is  not  entitled,  nor  is  it  made  his 
duty,  to  take  possession  of  the  real  estate  of  his  ward.(Z) 

DOWER.  It  is  the  duty  of  a  guardian  to  institute  proceedings 
for  the  assignment  of  dower.(w) 

It  is  equally  his  duty  to  lease  such  portion  of  the  estate  as  is  set 
apart  to  the  wards;  and  his  estate  is  liable  for  whatever  might  have 
been  received  by  a  faithful  discharge  of  those  duties.(m) 

CONVERSION.  If  a  guardian  severs  rails  in  a  fence  on  the  land 
of  his  wards  and  the  widow,  and  converts  them  to  his  own  use,  his 
estate  is  answerable  directly  to  the  heirs  for  their  value.(w) 


SECTION  iv. — ADMINISTRATION  OVER  REAL  ESTATE  THROUGH  THE 

CONSERVATOR. 

The  law  on  this  subject  may  be  found  at  pp.  138,  et  seq.,  supra. 
See  Cothran's  Annotated  Statutes,  1880,  p.  955. 

({)  Mason  v.  Wait,  4  Scam.  127.  (&)  Fitzgibbon  v.  Lake,  29  111.  165. 

(j)  Young  v.   Lorain,   11    111.  625  ;        (f)  Mutter  v.  Benner,  69  111.  108. 
Harvey  v.  Sweet,  16  id.  127.  (m)  Clark  v.  Bumside,  15  111.  62. 


CH.  VIII.]  EXPENSES,   ALLOWANCES   AND   CLAIMS.  2 1 5 

Demands  classified. 

CHAPTEE  VIII. 

EXPENSES,  ALLOWANCES,  CLAIMS  AND  LEGACIES. 

SECTION     I.  Demands  classified,  the  widow's  award,  funeral  expenses,  and 

expenses  of  last  illness. 
II.  Claims  against  estates. 
III.  Legacies. 


SECTION  I.  —  DEMANDS  CLASSIFIED,  WIDOW'S  AWABD,  AND  EXPEN- 
SES. 

1.  Demands  classified. 

2.  To  be  classed  in  order  as  prescribed,  and  paid  class  by  class,  when  insuffi 

cient,  demands  paid  pro  rota. 

3.  Demand  of  executor  or  administrator  to  be  filed  and  defended  against : 

how. 
.  4.  Demands  to  be  entered  and  classed,  papers  to  be  filed  and  preserved. 

5.  Award  to  the  widow  and  children,  or  the  "  widow's  award." 

6.  Duty  of  appraisers  in  making  the  award. 

7.  Renouncing  or  failing  to  renounce  under  the  will  by  the  widow,  not  tc 

affect  her  award. 

8.  Award  to  be  to  the  children  if  there  be  no  widow  when  decedent  was  a 

householder. 

9.  The  widow  or  surviving  husband  may  renounce  in  writing  all   benefit 

under  the  will,  and  receive  property  as  if  the  decedent  had  died  intes- 
tate. 

10.  Legacies  and  bequests,  if  diminished  by  renunciation,  to  be  equalized. 

11.  Widow,  when  liable  for  waste. 

12.  Relinquishment  of  specified  articles  and  further  selection  by  the  widow. 

13.  Statement  thereof  to  the  court. 

14.  Estimate  of  specific  property. 

15.  Expenses  attending  the  last  illness. 

1.  DEMANDS  CLASSIFIED.  All  demands  against  the  estate  of  any 
testator  or  intestate  shall  be  divided  into  classes,  in  manner  follow- 
ing, to  wit : 

First.  Funeral  expenses. 

Second.  The  widow's  award,  if  there  is  a  widow,  or  children,  ii 
there  are  children  and  no  widow. 

Third.  Expenses  attending  the  'last  illness,  not  including  physi- 
cian's bill. 


216  EXPENSES,    ALLOWANCES   AXD    CLAIMS.  [CH.  VIII. 


Demands  classified. 


Fourth.  Debts  due  the  common  school  or  township  fund. 

Fifth.  All  expenses  of  proving  the  will,  and  taking  out  letters 
testamentary  or  of  administration,  and  settlement  of  the  estate, 
and  the  physician's  bill  in  the  last  illness  of  the  deceased. 

Sixth.  Where  the  decedent  has  received  money  in  trust  for  any 
purpose,  his  executor  or  administrator  shall  pay  out  of  his  estate 
the  amount  thus  received  and  not  accounted  for. 

Seventh.  All  other  debts  and  demands  of  whatsoever  kind,  with- 
out regard  to  quality  or  dignity,  which  shall  be  exhibited  to  the 
court  within  two  years  from  the  granting  of  letters  as  aforesaid:  and 
all  demands  not  exhibited  within  two  years  as  aforesaid,  shall  be 
forever  barred,  unless  the  creditors  shall  find  other  estate  of  the 
deceased,  not  inventoried  or  accounted  for  by  the  executor  or  admini- 
strator, in  which  case  their  claims  shall  be  paid  pro  rata  out  of 
such  subsequently  discovered  estate,  saving,  however,  to  femmes 
couverte,  infants,  persons  of  unsound  mind,  or  imprisoned,  or  without 
the  United  States  in  the  employment  of  the  United  States  or  of 
this  State,  the  term  of  two  years  after  their  respective  disabilities 
are  removed  to  exhibit  their  claims,  (a)  Generally  it  is  no  part  of 
an  administrator's  duty  to  pay  a  claim  against  an  estate  before  it  is 
allowed  by  the  court.  If  he  does  so  he  must  take  the  risk  of  its 
proof  and  allowance.  ( b) 

2.  All  claims  against  estates,   when    allowed    by  the   county 
court,  shall  be  classed  and  paid  by  the  executor  or  administrator,  in 
the  manner  provided  in  this  act,  commencing  with  the  first  class  ; 
and  when  the  estate  is  insufficient  to  pay  the  whole  of  the  demands, 
the  demands  in  any  one  class  shall  be  paid,  pro  rata,  whether  the 
same  are  due  by  judgment,  writing  obligatory,  or  otherwise,  except 
as  otherwise  provided,  (c) 

3.  When  an  executor  or  administrator  has  a  demand  against  his 
testator  or  intestate's  estate,  he  shall  file  his  demand  as  other  per- 
sons ;  and  the  court  shall  appoint  some  discreet  person  to  appear 
and  defend  for  the  estate,  and,  upon  the  hearing,  the  court  or  jury 
shall  allow  such  demand,  or  such  part  thereof  as  is  legally  estab- 
lished, or  reject  the  same,  as  shall  appear  just.     Should  any  execu- 
tor or  administrator  appeal  in  such  case,  the  court  shall  appoint 
some  person  to  defend  as  aforesaid. (c?)     No  allowance  for  burdens 
voluntarily  assumed  by  an  administrator  or  executor,  on  behalf  of 
the  estate,  while  under  no  duty  to  act  or  protect  it,    may  be 
allowed.(e) 

4.  The  county  court  shall  make  an  entry  of  all  demands  against 
estates,  classing  the  same  as  above  provided,  and  file  and  preserve 
the  papers  belonging  to  the  same.     If  an  executor  or  administrator 

(a)  §70,  R  S.  1874,  p.  116.  (d)  §  72,  R.  S.  1874,  p.  117. 

(d)  Walker  v.  DieM,  79  111.  473.  (e)  Ex  parte  Allen,    Adm'r.,  89  111. 

(c)  §  71,  R.  S.  1874,  p.  117.  474. 


CH.  VIII.J  EXPENSES,   ALLOWANCES   AND   CLAIMS.  217 

Award  to  widow  or  children. 

pays  a  claim  before  the  same  is  allowed  as  aforesaid,  said  court  shall 
require  such  executor  or  administrator  to  establish  the  validity  of 
such  claim  by  the  like  evidence  as  is  required  in  other  cases,  before 
the  same  is  classed,  and  be  credited  therewith. (d) 

Funeral  expenses  are  too  well  known  to  require  specification ;  the 
coffin,  the  shroud,  the  carriages,  the  sexton,  etc.,  familiar  to  all. 

5.  AWARD  TO  WIDOW  OR  CHILDREN.  The  widow,  residing  in  this 
State,  of  a  deceased  husband  whose  estate  is  administered  in  this 
State,  whether  her  husband  died  testate  or  intestate,  shall  in  all 
cases,  in  exclusion  of  debts,  claims,  charges,  legacies  and  bequests, 
except  funeral  expenses,  be  allowed  as  her  sole  and  exclusive  prop- 
erty forever,  the  following,  to  wit : 

First.  The  family  pictures  and  the  wearing  apparel,  jewels  and 
ornaments  of  herself  and  her  minor  children. 

Second.  School  books  and  family  library  of  the  value  of  one  hun- 
dred dollars. 

Third.  One  sewing  machine. 

Fourth.  Necessary  beds,  bedsteads  and  bedding  for  herself  and 
family. 

Fifth.  The  stoves  and  pipes  used  in  the  family,  with  the  necessary 
cooking  utensils  ;  or,  in  case  they  have  none,  fifty  dollars  in  money. 

Sixth.  Household  and  kitchen  furniture  to  the  value  of  one  hun- 

» 

dred  dollars. 

Seventh.  One  milch  cow  and  calf  for  every  four  members  of  her 
family. 

Eighth.  Two  sheep  for  each  member  of  her  family,  and  the  fleeces 
taken  from  the  same,  and  one  horse,  saddle  and  bridle. 

Ninth.  Provisions  for  herself  and  family  for  one  year. 

Tenth.  Food  for  the  stock  above  specified,  for  six  months. 

Eleventh.  Fuel  for  herself  and  family  for  three  months. 

Twelfth.  One  hundred  dollars  worth  of  other  property  suited  to 
her  condition  in  life  to  be  selected  by  the  widow. 

Which  shall  be  known  as  the  widow's  award,  or  the  widow  may, 
if  she  elect,  take  and  receive  in  lieu  of  the  foregoing,  the  same  per- 
sonal property,  or  money  in  place  thereof,  as  is  or  may  be  exempt 

(d)  §  73,  R.  8.  1874,  p.  117. 
28 


218  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII. 


Award  to  widow  or  children. 


from  execution  or  attachment  against  the  head  of  a  family  residing 
with  the  same.(e) 

6.  The  appraisers  shall  make  out  and  certify  to  the  county  court 
an  estimate  of  the  value  of  each  of  the  several  items  of  property 
allowed  to  the  widow  ;  and  it  shall  be  lawful  for  the  widow  to  elect 
whether  she  will  take  the  specific  articles  set  apart  to  her,  or  take 
the  amount  thereof  out  of  other  personal  property  at  the  appraised 
value  thereof,  or  whether  she  will  take  the  amount  thereof  in  money, 
or  she  may  take  a  part  in  property  and  a  part  in  money,  as  she  may 
prefer ;  and  in  all  such  cases  it  shall  be  the  duty  of  the  executor  or 
administrator  to  notify  the  widow  as  soon  as  such  appraisement  shall 
be  made,  and  to  set  apart  to  her  such  article  or  articles  of  property, 
not  exceeding  the  amount  to  which  she  may  be  entitled,  and  as  she 
may  prefer  or  select,  within  thirty  days  after  written  application  shall 
be  made  for  that  purpose  by  such  widow.     And  if  such  executor  or 
administrator  shall  neglect  or  refuse  to  comply  with  the  above  requi- 
sition, when  application  shall  be  made  for  that  purpose,  he  shall  for- 
feit and  pay  for  the  use  of  such  widow  the  sum  of  twenty  dollars  per 
month  for  each  month's  delay  to  set  apart  said  property  so  selected, 
after  the  said  term  of  thirty  days  shall  have  elapsed,  to  be  recovered  in 
the  name  of  the  People  of  the  State  of  Illinois,  for  the  use  of  such 
widow,  in  any  court  having  jurisdiction  of  the  same.     When  there 
is  not  property  of  the  estate,  of  the  kinds  mentioned  in  the  preceding 
section,  the  appraisers  may  award  the  widow  a  gross  sum  in  lieu 
thereof,  except  for  family  pictures,  jewels  and  ornaments.(/) 

7.  The  right  of  a  widow  to  her  award  shall  in  no  case  be  affected 
by  her  renouncing  or  failing  to  renounce  the  benefit  of  the  provisions 
made  for  her  in  the  will  of  her  husband,  or  otherwise.(^) 

8.  When  the  person  dying  is  at  the  time  of  his  death  a  house- 
keeper, the  head  of  a  family,  and  leaves  no  widow,  there  shall  be 
allowed  to  the  children  of  the  deceased,  residing  with  him  at  the  time 

(«)  §  74,  R.   S.  1874,  p.  117.     The  (/)  §  75,  R.  S.  1874,  p.  117.    In  Cruce 
widow  takes,  in  addition  to  dower  in  v.  Cruce,  21  111.,  the  court  held  that 
the  realty,  one-third  of  the  net  person-  where  the  intestate  leaves  no  property 
alty,  after  all  claims  are  paid  (Sisk  v.  of  the  kind  specified  in  the  statute,  the 
Smith,  1  Gilm.  503),  also  the  specific  widow  shall  be  entitled  to  other  prop- 
allowance  under  this   act  where   the  erty  of  equal  value,  and  that  it  is  the 
estate  is  solvent.     If  it  is  not  solvent,  duty  of  the  administrator  to  set  apart 
then  for  any  deficiency  of  the  person-  to  her  such  property.     See   Tyson  v. 
alty  to  pay  her  separate  allowance,  she  Postlethwaite,  13  111.  727. 
ranks  as  a  creditor  of  the  estate.    Cruce  (g)  §  76,  R.  S.  1874,  p.  118. 
v.  Cruce,  21  111.47.  Chap,  x,  infra.  See 
chap.  52,  R.  S.  1874,  p.  497. 


OH.  VIII.J  EXPENSES,   ALLOWANCES   AND   CLAIMS. 


219 


Award  to  widow  or  children. 


of  his  death  (including  all  males  under  eighteen  years  of  age,  and  al: 
females),  the  same  amount  of  property  as  is  allowed  to  the  widow 
by  this  act.  (A) 

9.  WIDOW  OK   SURVIVING   HUSBAND    MAY  RENOUNCE   THE   WILL 

The  widow  or  surviving  husband  of  a  testate  may,  at  any  time  within 
one  year  from  the  time  at  which  the  will  of  her  or  his  testate  husband 
or  wife  was  admitted  to  probate,  renouncing  in  writing  all  her  or  his 
claim  to  the  legacies  and  bequests  made  for  her  or  him  in  such  will, 
in  which  case  she  or  he  shall  be  allowed  the  same  property  as  if  the 
husband  or  wife  had  died  intestate.(t) 

10.  In  all  cases  where  a  widow  or  surviving  husband  shall  renounce 
all  benefit  under  the  will,  and  the  legacies  and  bequests  therein  con- 


(A)  §  77,R.  S.  1874,  p.  118.  In  the  case 
of  Lesher  v.  Wirth,  14  111.  39,  it  ap- 
peared, that  on  the  25th  of  September, 
1840,  one  Henry  Fox  died  intestate, 
leaving  Adelia  Fox  his  widow,  and  a 
number  of  children  his  heirs  at  law ; 
that  his  estate  was  settled  in  due  course 
of  administration,  and  his  widow  al- 
lowed her  separate  provision  under  the 
statute ;  that  she  died  September  25, 
1848,  leaving  personal  estate  to  the 
amount  of  about  $150  or  $200 ;  that 
Lesher,  a  physician,  attended  her  dur- 
ing her  last  illness.  The  probate  court 
ordered  the  whole  of  the  property  to  be 
distributed  among  the  children,  under 
the  section  in  question.  Appeal  was 
taken  to  the  circuit  court,  and  the  j  udg- 
ment  below  affirmed.  Lesher  brought 
writ  of  error  against  Wirth,  the  admin- 
istrator. The  court  said,  the  only  ques- 
tion in  this  case  is.whether  the  children, 
where  the  intestate  is  a  widow,who  was 
at  the  time  of  her  death  a  householder, 
and  the  head  of  a  family,  shall  take 
under  the  provisions  of  this  section  the 
same  as  if  the  intestate  had  been  a 
widower.  "  To  me,"  said  the  court, 
CATON,  J.,  "  it  seems  exceedingly  clear 
that  the  children  are  entitled  to  take 
the  property  left  by  a  mother,  the  same 
as  if  left  by  a  father."  Widow's  claim 
to  the  specific  articles  allowed  her. 
Immediately  on  the  death  of  the  hus- 
band, the  right  of  the  widow  accrues, 
and  if  she  die  before  she  receives  the 
specific  articles,  and  they  not  having 
been  set  off  to  her  administrator,  their 
value  must  be  accounted  for  to  him  as 
assets  of  her  estate.  York  v.  York,  38 
111.  522.  In  Vide  v.  Koch  it  was  held  that 


A  was  not  a  housekeeper  within  the 
meaning  of  the  fourth  section  of  the 
act  entitled  "An  act  to  amend  an  act 
relative  to  wills,"  etc.,  and  that  his 
children  could  not  receive  the  same 
amount  of  property  that  would  have 
been  allowed  by  law  to  his  widow.  27 
111.  129.  A  widow,  whose  husband 
died  intestate,  leaving  no  children  or 
descendants,  may  recover  in  assumpsit 
for  the  property  of  her  deceased  hus- 
band, which  she  has  sold,  although 
letters  of  administration  have  never 
issued  upon  the  estate.  Cross  v.  Carey, 
25  111.  562.  The  statute  providing  for 
an  allowance  to  a  widow  of  such  beds, 
bedsteads,  bedding,  and  household  and 
kitchen  furniture  as  may  be  necessary 
for  herself  and  family,  and  provisions 
for  a  year  for  herself  and  family,  is  to 
be  construed  in  reference  to  the  cir- 
cumstances of  the  parties ;  and  in  fixing 
such  allowance,  the  appraisers  should 
take  into  view  the  condition  and  mode 
of  life  in  which  the  widow  was  left  by 
the  death  of  her  husband,  and  regard 
as  necessary  that  furniture  which  is 
the  ordinary  and  appropriate  furni- 
ture for  such  homesteads.  Strawn  v. 
Straicn,  53  111.  263.  The  widow  of  a 
person  who  dies  intestate  is  entitled, 
as  her  sole  and  separate  property,  to 
certain  specified  articles  of  the  intes- 
tate's estate,  or  their  value.  The 
children  of  a  widow  who  dies  intes- 
tate, a  housekeeper,  and  the  head  of  a 
family,  take  the  same  articles  of 
property  that  they  would  take  if  the 
intestate  were  a  widower.  Lesher  v. 
Wirth,  14  111.  39. 
(t)  Coth.  Rev.  Stats.,  p.  550,  g  10-12. 


220  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII. 

Award  to  widow  or  children. 

tained,  to  other  persons,  shall,  in  consequence  thereof,  become  dimin- 
ished or  increased  in  amount,  quantity  or  value,  it  shall  be  the  duty 
of  the  court,  upon  settlement  of  such  estate,  to  abate  from  or  add  to 
such  legacies  and  bequests  in  such  manner  as  to  equalize  the  loss 
sustained  or  advantage  derived  thereby,  in  a  corresponding  ratio  to 
the  several  amounts  of  such  legacies  and  bequests,  according  to  the 
amount  or  intrinsic  value  of  each.(  /) 

11.  If  the  widow  commits  waste  in  the  lands  and  tenements,  or  the 
personal  estate  of  the  deceased,  she  shall  be  liable  to  an  action  by  the 
heir  or  devisee,  or  his  or  her  guardian,  if  of  real  estate,  or  by  the 
executor  or  administrator  if  of  personal  estate ;  and  if  she  marry  a 
subsequent  husband,  he  shall  be  answerable  with  her  in  damages  for 
any  waste  committed  by  her,  or  by  the  husband  himself,  after  such 
marriage.  (&) 

12.  If  the  widow  (or  children,  as  the  case  may  be)  elect  to  take 
other  articles  than  those  specified  in  the  statute,  she  (or  they)  should 
RELINQUISH  THE  RIGHT  to  the  specified  articles,  and  signify  to  the 
administrator  what  particular  articles  mentioned  in  the  appraise- 
ment bill  she  desires  to  retain  in  lieu  thereof,  and  the  articles  relin- 
quished are  then  to  be  sold  as  the  other  property  of  the  deceased. 
The  following  form  will  be  found  convenient  for  such  relinquish- 
ment  and  selection : 

WIDOW'S  (OR  CHILDREN'S)  RELINQUISHMENT  OP  SPECIFIC  PROPERTY. 

I,  M  B,  widow  of  A  B,  deceased,  do  hereby  relinquish  all  my  claim  to  the 
following  articles,  mentioned  in  the  "  estimate  of  specific  property,"  allowed 
me,  viz. :  10  sheep,  1  cow,  etc.,  the  aggregate  value  of  which,  as  estimated,  is 
$  ;  and  in  lieu  of  the  same  I  desire  to  retain  the  following  articles,  named 
in  the  "appraisement  bill  of  personal  property"  of  said  A  B,  deceased,  viz. :  1 
buggy,  1  harness,  etc.,  the  total  value  of  which,  as  appraised,  is  $  ,  and 
the  balance  I  prefer  to  have  in  money. 

Witness  my  hand  and  seal,  this        day  of  ,  A.  D  18     . 

[L.  s.]  M.  B. 

After  such  relinquishment  and  selection  has  been  made  known  to 
the  administrator,  he  should  proceed  to  set  out  such  articles  to  her, 
and  withdraw  from  sale  what  she  has  selected,  and  sell  what  she  has 
relinquished. 

He  should  file  in  court  the  relinquishment,  and  a  statement  of 
the  property  actually  taken  by  the  widow  (or  children),  with  its 
appraised  value,  which  may  be  in  the  following  form : 

( j )  §  79,  R.  S.  1874,  p.  118.  (k)  §  80,  R.  S.  1874,  p.  118. 


:'ll.  V1II.J  EXPENSES,   ALLOWANCES   AND   CLAIMS.  221 

Award  to  widow  or  children. 

13.  ARTICLES  OF  SPECIFIC  PKOPEETT  SET  OFF  TO  M  B,  WIDOW  OF 

A  B,  DECEASED. 

STATE  OF  ILLINOIS,  )  In  the  County  Court  of          county, 

County,      f  s*  term,  18     . 

To  the  Judge  of  said  court : 

The  undersigned,  administrator  of  A  B,  deceased,  would  respectfully  submit 
the  following  report  of  specific  property  set  off  to  M  B,  widow  of  A  B,  in 
accordance  with  her  relinquishment  and  selection,  and  pursuant  to  the  statute 
in  such  case  made  and  provided,  as  follows : 

ARTICLES.  APPRAISED  VALUE. 

1  Buggy $50  00 

1  Harness 15  00 

1  Cow 30  00 

Beds...  10  00 


Total  value $105  00 

Value  of  specific  property  as  estimated  and  allowed  by  law  . .  $500  00 

Balance  due  said  A  B  in  money $ 

CD, 
Administrator  of  A  B,  deceased. 

14.  ESTIMATE  OF  SPECIFIC  PROPERTY. 

An  estimate  of  the  specific  property  allowed  M  B,  widow  (or  E  B  and  G  B, 
children)  of  A  B,  deceased. 

NAMES  OF  ARTICLES.  VALUATION. 

2  Beds,  at  $5  each $10  00 

2  Cows,  at  $30  each GO  00 

2  Calves,  at  $5  each 10  00 

1  Horse 40  00 

(And  so  on  through  the  list.     The  one  hundred  dollars'  worth  of  other 
property  is  not  a  subject  for  the  estimation  of  value.) 

Total  value  of  specific  property  left  by  deceased $ 


Value  of  articles  named  in  the  statute  of  which  the  said  A  B  did  not  die 
seized : 

ARTICLES.  ESTIMATION. 

10  Sheep,  at  $2  per  head $20  00 

Necessary  fuel  for  three  months 15  00 

Provisions  for  one  year 200  00 


Total $ 

Total  value  of  specific  articles  left  by  deceased  brought  down 

Add  $100  worth  of  other  property 100  00 


Total. 


222  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [dl.  VIII. 

Claims  against  estates. 

The  undersigned,  appraisers  of  the  personal  estate  of  A  B,  deceased,  do 
certify  that  the  family  of  the  deceased  consists  of  the  said  widow  and  four 
children ;  that  the  foregoing  is  a  complete  schedule  of  all  articles  of  per- 
•sonal  property  specified  in  the  statute  left  by  deceased,  and  a  true  estimate 
of  the  value  of  the  same  respectively ;  and  that  the  articles  named  in  said 
statute  not  left  by  the  deceased,  suitable  to  the  condition  in  life  of  the  said 
widow  and  her  family,  are  of  the  value  as  above  estimated. 

Witness  our  hands  and  seals,  this        day  of  ,  A.  D.  18     . 

[L.  s.]  A  B. 

[L.  s.]  E  S, 

[L.  s.]  T  W, 

Appraisers. 

15.  THE  EXPENSES  ATTENDING  THE  LAST  ILLNESS,  NOT  INCLUD- 
ING THE  PHYSICIAN'S  BILL.  These  depend  upon  the  length  and 
character  of  the  illness,  and  the  circumstances  of  each  case.  They 
are  the  necessary  and  usual  expenses  in  taking  the  steps  to  prolong 
the  life  or  soothe  the  pillow  of  the  dying. 


SECTION   II.  —  CLAIMS   AGAINST   ESTATES. 

1.  Notice  of  term  fixed  by  executor  or  administrator  for  adjustment  of;  pro- 

cedure prescribed;  jury  trial,  etc. 

2.  When  a  creditor  may  file  his  claim,  summons  to  issue  to  the  executor  or 

administrator. 

3.  Return  term,  cause  to  be  continued  if  summons  be  not 'served  ten  days 

before. 

4.  Procedure  prescribed. 

5.  Claimant  may  be  compelled  to  make  oath  that  his  "  claim  is  just  and 

unpaid." 

6.  Evidence. 

7.  Counter-claims. 

8.  Claims  not  yet  due  may  be  proven. 

9.  Appeal  may  be  taken  by  either  party  to  the  circuit  court. 

10.  Change  of  venue  to  circuit  court  if  county  judge  be  interested  or  a  witness 

in  any  case  or  matter  pending  in  his  court. 

11.  Adjudication  of  claims,  instructions  to  executors  or  administrators. 

12.  Administrator's  notice. 

13.  Creditor's  rights,  how  enforced. 

14.  Time  in  which  claims  are  to  be  presented. 

15.  The  decisions  collated. 

1.  CLAIMS  AGAINST  ESTATES.    Every  administrator  or  executor 
shall  fix  upon  a  term  of  the  court,  within  six  months  from  the  time 


CH.  VIII.]  EXPENSES,  ALLOWANCES  AND  CLAIMS.  223 

Claims  against  estates. 

of  his  being  qualified  as  such  administrator  or  executor,  for  the 
adjustment  of  all  claims  against  such  decedent,  and  shall  publish  a 
notice  thereof,  for  three  successive  weeks,  in  some  public  newspaper 
published  in  the  county,  or  if  no  newspaper  is  published  in  the 
county,  then  in  the  nearest  newspaper  in  this  State,  and  also  by 
putting  up  a  written  or  printed  notice  on  the  door  of  the  court- 
house, and  in  five  other  of  the  most  public  places  in  the  county,  no- 
tifying and  requesting  all  persons  having  claims  against  such  estate 
to  attend  at  said  term  of  the  court  for  the  purpose  of  having  the 
same  adjusted  (the  first  publication  of  said  notice  to  be  given  at  least 
six  weeks  previous  to  said  term),  when  and  where  such  claimant 
shall  produce  his  claim,  in  writing  ;  and  if  no  objection  is  made  to 
said  claim  by  the  executor,  administrator,  widow,  heirs  or  others 
interested  in  said  estate,  and  the  claimant  swears  that  such  claim  is  just 
and  unpaid,  after  allowing  all  just  credits,  the  court  may  allow  such 
claim  without  further  evidence,  but  if  objection  is  made  to  such 
claim,  the  same  shall  not  be  allowed  without  other  sufficient  evi- 
dence. The  court  may  allow  either  party  further  time  to  produce 
evidence  in  his  favor,  and  the  case  shall  be  tried  and  determined  as 
other  suits  at  law.  Either  party  may  demand  a  jury  of  either  six  or 
twelve  men,  to -try  the  issue,  and  it  shall  be  the  duty  of  the  county 
clerk,  when  a  jury  is  demanded,  to  issue  a  venire  to  the  sheriff  of 
the  county  to  summon  a  jury,  to  be  composed  of  the  number 
demanded.  (I) 

2.  Whoever  has  a  claim  against  an  estate,  and  fails  to  present  the 
same  for  adjustment  at  the  term  of  court  selected  by  the  executor  or 
administrator,  may  file  a  copy  thereof  with  the  clerk  of  the  court ; 
whereupon,  unless  the  executor  or  administrator  will  waive  the  issu- 
ing of  process,  the  clerk  shall  issue  a  summons,  directed  to  the  sheriff 
of  the  county,  requiring  such  executor  or  administrator  to  appear 
and  defend  such  claim  at  a  term  of  court  therein  specified,  which 
summons,  when  served,  shall  be  sufficient  notice  to  the  executor  or 
administrator  of  the  presentation  of  such  claim,  (m) 

3.  If  the  summons  is  not  served  ten  days  before  the  first  day  of 
the  term  to  which  it  is  returnable,  the  cause  shall  be  continued  until 
the  next  term  of  the  court,  unless  the  parties  shall,  by  consent,  pro- 
ceed to  trial  at  the  return  term,  (n) 

4.  Upon  the  trial  .of  such  cause,  the  same  proceedings  may  be  had 
as  if  the  claim  had  been  presented  at  the  time  fixed  for  the  adjust- 

(1)  §  60,  R.  S.  1874,  p.  115.  (n)  %  62,  R.  S.  1874,  p.  115. 

Cm)  §  61,  id. 


22-i  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.   VIII. 

Claims  against  estates. 

ment  of  claims  against  the  estate,  but  the  estate  shall  not  be  answera- 
ble for  the  costs  of  such  proceeding  :  Provided,  that  when  defense 
is  made  the  court  may,  if  it  shall  deem  just,  order  the  whole  or  some 
part  of  the  costs  occasioned  by  such  defense  to  be  paid  out  of  the 
estate.(o) 

5.  The  court  may,  in  its  discretion  in  any  case,  before  giving  judg- 
ment against  any  executor  or  administrator,  require  the  claimant  to 
make  oath  that  such  claim  is  just  and  unpaid  :  Provided,  that  the 
amount  of  such  judgment  shall  not  in  such  case  be  increased  upon 
the  testimony  of  the  claimant,  (p) 

6.  A  judgment  regularly  obtained,  or  a  copy  thereof  duly  certified 
and  filed  with  the  court,  shall  be  taken  as  duly  proven  ;  and  all 
instruments  in  writing,  signed  by  the  testator  or  intestate,  if  the 
handwriting  is  proven  and  nothing  is  shown  to  the  contrary,  shall 
be  deemed  duly  proved.  ( q) 

7.  When  a  claim  is  filed  or  suit  brought  against  an  executor  or 
administrator,  and  it  appears  on  trial  that  such  claimant  or  plaintiff 
is  indebted  to  such  executor  or  administrator,  the  court  may  give 
judgment  therefor,  and  execution  may  issue  thereon  in  favor  of  the 
executor  or  administrator.(r) 

8.  Any  creditor,  whose  debt  or  claim  against  the  estate  is  not  due, 
may,  nevertheless,  present  the  same  for  allowance  and  settlement, 
and  shall  thereupon  be  considered  as  a  creditor  under  this  act,  and 
shall  receive  a  dividend  of  the  said  decedent's  estate,  after  deducting 
a  rebate  of  interest  for  what  he  shall  receive  on  such  debt,  to  be 
computed  from  the  time  of  the  allowance  thereof  to  the  time  such 
debt  would  have  become  due,  according  to  the  tenor  and  effect'  of 
the  contract.(s)     (See  Hall,  Adm'r,  v.  Hoxsey,  84  111.  616.) 

9.  In  all  cases  of  the  allowance  or  rejection  of  claims  by  the 
county  court,  as  provided  in  this  act,  either  party   may   take  an 
appeal  from  the  decision  rendered  to  the  circuit  court  of  the  same 
county,  in  the  same  time  and  manner  appeals  are  now  taken  from 
justices  of  the  peace  to  the  circuit  court,  by  appellant  giving  good 
and  sufficient  bond  with  security  to  be  approved  by  the  county  judge; 
and  such  appeals  shall  be  tried  de  novo  in  the  circuit  court,  (t) 

10.  In  all  cases  and  matters  pending  in  the  county  court,  where 
the  judge  of  that  court  shall  be  interested  in  the  same,  or  is  a  mate- 

(o)  §  63,  B.  S.  1874,  p.  116.  (r)  §  66,  R.  S.  1874,  p.  116. 

(p)§64,  id.  (*)$67,id. 

(q)  %  65,  id.  (*)  §  68,  id. 


CH.  VIII.]  EXPENSES,    ALLOWANCES   AND   CLAIMS.  225 

Claims  against  estates. 

rial  and  necessary  witness,  the  case  shall  be  transmitted  to  the  circuit 
court  of  the  proper  county,  and  there  determined  as  in  the  county 
court,  and  the  papers,  with  the  order  or  judgment  of  the  cir- 
cuit court  thereon,  shall  be  duly  certified  and  filed  in  the  county 
court,  and  have  the  same  effect  as  if  determined  in  the  county 
court.(?<)  It  is  further  provided  in  the  act  giving  jurisdiction  to 
county  courts,  which  is  a  later  act,  whenever  the  county  judge  of 
any  county  is  interested  in  the  estate  of  any  deceased  person,  and  the 
letters  testamentary  or  of  administration  shall  be  grantable  in  the 
county  of  said  judge,  such  facts  shall  be  entered  upon  the  records 
of  such  court,  and  certified  to  the  circuit  court  of  such  county. 
Provided,  that  in  case  the  judge  is  interested  only  as  a  creditor 
no  change  need  be  made  except  in  relation  to  his  claim. 

11.  ADJUDICATION  OF  CLAIMS.  The  administrator  or  executor 
should  write  on  the  back  of  all  claims,  before  the  same  are  called  by 
the  court  at  the  regular  adjudication,  "  no  objection,"  or  "  objected 
to,"  and  sign  his  name.  Claims  thus  objected  to  are  liable  to  be 
dismissed,  unless  the  claimant  appears  and  moves  the  court  to  set 
them  down  for  trial.  Claims,  not  so  objected  to,  will  be  allowed  in 
the  discretion  of  the  court. 

The  general  adjudication  is  brought  on  by  the  — 

12.  ADMINISTRATOR'S  NOTICE. 

Public  notice  is  hereby  given,  that  on  the  first   day  of  next,  I  shall 

attend  before  the  court  of  county,  at  ,  Illinois,  at  10  o'clock 

A.  M.  of  said  day,  for  the  purpose  of  settling  and  adjusting  all  claims  against 
the  estate  of  ,  late  of  said  county,  deceased,  when  and  where  all  claim- 

ants are  notified  and  requested  to  attend,  and  present  their  claims  in  writing 
against  said  estate  for  adjustment.  All  persons  indebted  to  said  estate  are 
also  notified  to  make  payment  to  the  undersigned  without  delay. 

,  18    .  A  B,  Administrator.(o) 

At  the  time  mentioned  in  said  notice,  all  persons  having  claims 
against  the  estate  may  present  them  without  giving  notice  to  the 
administrator,  and  such  claims  may  be  adjusted  at  that  time, 
though  the  administrator  should  actually  be  absent,  for  the  law 
presumes  him  to  be  in  court.(w)  The  claim  should  be  presented  in 
writing.  If  it  be  in  a  note  or  contract,  or  transcript  of  a  judg- 
ment, the  filing  of  such  note,  etc.,  would  be  sufficient. 

If  the  claim  be  presented  at  any  other  time  than  that  mentioned 

(M)  §  69,  R.  S.  1874,  p.  116.  (w)  Propst  v.  Meadows,  13  111.  166. 

(t?)  See  p.  51,  supra. 
29 


226  EXPENSES,  ALLOWANCES  AND  CLAIMS.  [CH.  VIII. 

Claims  against  estates. 

in  the  administrator's  notice,  the  administrator  is  to  be  notified  of 
the  time  in  the  mode  prescribed  when  the  claimant  intends  to 
exhibit  his  demands.  Ten  days  notice  is  to  be  given  him  before 
the  time,  by  summons.  In  computing  the  ten  days,  the  day  of  ser- 
vice is  to  be  excluded. 

The  administrator  may  waive  the  service  of  notice  or  summons, 
and  appear  without  it,  which  would  give  the  court  jurisdiction. 
The  estate  will  not  be  liable  for  costs  or  claims  filed  after  the  time 
fixed  by  the  administrator  for  the  general  adjustment  of  accounts. 

EVIDENCE  REQUIRED  TO  ESTABLISH  A  CLAIM.  If  no  objection  be 
made  by  the  administrator,  or  any  other  person  interested  in  the 
estate,  the  claimant  shall  be  permitted  to  swear  that  the  claim  is 
just  and  unpaid.  If  objections  be  made,  previous  to  the  claim 
being  sworn  to,  the  account  shall  be  adjudicated  as  is  now  required 
by  law ;  that  is,  it  is  to  be  established  by  legal  evidence,  the  same  as 
similar  matters  in  controversy  in  suits  at  law. 

As  estates  of  deceased  persons  are  peculiarly  exposed  to  imposi- 
tion, and  as  the  administrator  is  acting  in  a  fiduciary  capacity  for 
the  heirs  and  creditors,  and  not  dealing  for  himself,  he  should  not 
be  too  ready  to  admit  the  correctness  of  claims.  Many  claims,  that 
would  never  be  presented  against  a  person  while  living,  are  brought 
forward  against  his  estate  when  dead,  because  the  ill-designing  per- 
sons who  hold  them  are  aware  that  the  knowledge  of  facts  which 
would  bar  the  claim  is  locked  up  in  the  grave  of  the  deceased. 
The  administrator  is  rarely  familiar  with  the  complete  history  of 
the  accounts  of  the  deceased,  hence  he  should  be  satisfied,  by  proper 
evidence,  of  the  correctness  of  all  claims.  The  admission  of  the 
claimant  as  a  witness  to  prove  his  own  demand,  where  the  adminis- 
trator does  not  object,  is  a  grant  of  discretion  to  the  administrator, 
that  he  should  exercise  only  in  cases  where  he  has  convincing  evi- 
dence to  his  own  mind  that  the  claim  is  just.  He  should  not,  in 
justice  to  the  estate  he  represents,  waive  his  right  to  object,  only 
where  he  has  personal  knowledge  or  reliable  assurance  that  the 
claim  is  just,  legal  and  unsatisfied.  The  court  may,  in  its  discre- 
tion, in  addition  to  the  evidence  heard  on  the  claim,  require  the 
claimant  to  make  oath  that  such  claim  is  just  and  unpaid.  Pro- 
vided, that  the  amount  of  such  judgment  shall  not  be  increased 
upon  the  testimony  of  the  claimant.  The  law  thus  throws  guards 
around  the  estate  to  protect  it  from  the  unscrupulous  rapacity  of 


CTI.  TIII.J  EXPENSES,   ALLOWANCES   AND   CLAIMS.  227 

Claims  against  estates. 

those  who  would  despoil  the  widow  and  orphan  by  preying  upon  the 
estate  of  the  dead. 

In  the  case  mentioned  in  this  section  of  the  law,  the  court  may, 
after  hearing  the  evidence  produced  by  the  claimant,  which  is  not 
unfrequently  the  testimony  of  those  whom  the  plaintiff  has  sought 
out  as  knowing  but  his  side  of  the  case,  require  the  claimant  him- 
self to  purge  his  conscience  upon  it.  The  undoubted  spirit  of  the 
law  is,  to  exact  of  the  claimant  such  proof  of  the  merits  of  his 
demand  as  would  be  required  in  case  the  suit  were  contested  by  the 
deceased,  if  living;  unless  the  administrator,  in  the  exercise  of  a 
sound  discretion,  should  admit  its  legality,  for  the  purpose  of  saving 
the  estate  the  costs  of  unsuccessful  litigation.  Certified  copies  of 
unsatisfied  judgments  prove  themselves,  while  the  execution  of 
notes  of  hand  and  other  instruments  in  writing,  purporting  to  be 
executed  by  the  deceased,  is  to  be  proven ;  that  is,  the  handwriting 
of  the  deceased  is  to  be  proved.  The  rule  in  this  case  differs  from 
the  law,  in  ordinary  suits  between  the  living,  where  the  execution  of 
a  written  instrument  need  not  be  proved,  except  the  person  denies 
such  execution  under  oath.  The  law  here  does  not  presume  the 
execution  by  the  intestate,  but  throws  the  burden  of  its  proof  upon 
the  person  claiming  under  it. 

The  supreme  court,  in  the  case  of  Propst  v.  Meadows,(y)  in  regard 
to  the  presentation  of  claims  against  an  estate,  and  their  considera- 
tion, says :  "  The  various  provisions  of  these  sections  (z)  must  be 
considered  together  as  regulating  the  practice  of  courts  of  probate, 
when  entertaining  claims  against  estates  and  adjudicating  thereon. 
"When  a  claim  is  presented  at  a  term  of  the  court,  as  designated  in 
the  notice  given  under  the  95th  section,  the  executor  is  presumed  to 
be  present,  and  the  claimant  is,  therefore,  not  required  to  notify 
him  of  his  intention  to  present  his  claim  at  that  time. 

"  The  adjudications  of  the  court  at  that  term  upon  claims  must 
therefore,  be  presumed  to  have  been  regular,  and  to  have  been  made 
upon  the  proper  proofs  in  the  presence  of  both  parties.  In  that  sec- 
tion no  express  provision  is  made  for  the  postponement  of  the  con- 
sideration of  such  claims  to  any  subsequent  term.  If  they  are  not 
then  finally  disposed  of,  they  must  be  continued,  by  an  order  of  the 
court,  to  some  specified  time,  or  be  again  presented  under  the  118th 

(y)  13  111.  157.  (z)  Rev.  Stat.,  ch.  109,  §§  95, 116, 117, 

118.    See  R.  S.  1874,  p.  115. 


228  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII, 

Claims  against  estates. 

section.  This  section,  it  will  be  observed,  requires  the  person  in- 
tending to  present  a  claim  to  the  court  of  probate  against  an  execu- 
tor or  administrator,  to  give  ten  days'  notice  of  the  time  that  he 
intends  to  present  the  same,  when  the  court  may  allow  or  reject  the 
claim,  or  grant  further  time  for  either  party  to  prepare  for  trial, 
according  to  the  exigencies  of  the  case.  This  section  provides  an 
intelligent  and  just  practice  for  that  court,  and  was,  no  doubt,  in- 
tended by  the  legislature  to  be  pursued  in  all  cases  of  claims  against 
estates,  whether  presented  under  a  notice  from  the  claimant  or  the 
executor,  or  filed  under  the  law.  (a)  There  is  as  much  reason 
and  propriety  in  allowing  parties  further  time  to  prepare  for  the 
investigation  of  claims  presented  to  the  court  by  producing  the 
necessary  proofs,  when  the  claim  is  presented  in  pursuance  of  the 
notice  given  by  the  executors  to  all  creditors,  as  when  the  claim  is 
presented  under  a  notice  from  the  creditor  to  the  executor.  It  is 
this  notice  which  justifies  the  court  in  taking  cognizance  of  claims, 
and  which  requires  the  executor  to  appear  and  contest  them.  When 
the  parties  are  thus  before  the  court,  its  adjudication  is  final  and 
conclusive  upon  them.  What  would  constitute  such  final  adjudica- 
tion in  all  cases,  it  is  not  now  necessary  to  determine.  We  are  not 
prepared  to  say  that  the  omission  of  the  court  to  make  an  order, 
either  disallowing  the  claim  or  continuing  it  for  further  investiga- 
tion, would  constitute  such  an  adjudication  as  would  bar  the  right 
of  the  claimant  to  prosecute  it  further." 

It  is  the  duty  of  the  administrator  to  interpose  any  defense  to  a 
claim  which  exists,  if  he  is  aware  of  such  defense. 

Merely  filing  the  claim  is  not  sufficient.  At  final  closing  of  his 
account  at  the  end  of  two  years,  the  administrator  will  or  ought  to 
have  the  claim,  so  filed,  but  not  prosecuted,  presented  for  allow- 
ance. In  that  case,  the  administrator's  duty  is,  under  the  statute, 
to  have  such  claim,  if  thus  unprosecuted,  dismissed.  The  safe 
course  is,  if  the  claim  has  not  been  presented  on  adjustment  day,  to 
file  the  same,  or  rather  a  copy,  and  have  summons  issued,  and  the 
claim  prosecuted  to  allowance. 

13.  A  CREDITOR'S  RIGHT  to  enforce  the  payment  of  a  debt  by 
suit  against  the  person  determines  at  the  latter's  death,  and  his 
only  course  is  to  follow  the  deceased  person's  property  into  the 

(a)  §  116,  R.  S.,  ch.  109.     See  §§  61,  62,  R.  S.  1874,  p.  115. 


CH.  YIII.J  EXPENSES,    ALLOWANCES   AND   CLAIMS.  229 

Claims  against  estates. 

hands  of  his  personal  representatives.  The  administrator,  upon  his 
appointment,  takes  the  personal  property  of  the  deceased  in  trust 
for  the  payment  of  his  debts,  and  to  pass  the  surplus  to  his  heirs. 
The  proper  mode,  then,  to  seek  the  payment  of  a  claim  against  a 
deceased  person,  is  to  look  to  the  administrator  of  his  goods,  chattels, 
rights,  credits  and  effects,  or,  rather,  through  him,  to  the  property  or 
assets  in  his  hands.  Before  the  payment  of  claims  against  an  estate, 
they  should  be  proved,  in  the  mode  pointed  out  by  the  statute. 
Though  the  person  administering  may  be  satisfied  in  his  own  mind 
that  a  claim  is  legal  and  just,  yet  he  cannot  safely  pay  it  until  such 
claim  is  presented  to  the  court,  and  there  allowed,  on  proof  of  its 
correctness.  If  an  administrator  should  pay  a  claim  before  it  is 
allowed,  he  does  it  at  his  own  risk,  and  himself  assumes  the  respon- 
sibility of  proving  the  correctness  of  the  claim  in  court. 

14.  THE  TIME  IN  WHICH  CLAIMS   AEE  TO   BE  PRESENTED.      Credi- 
tors are  required  to  exhibit  their  demands  within  two  years  after  the 
grant  of  administration.     Those  free  from  disability,  who  neglect  to 
comply  with  this  requisition  of  the  statute,  must  rely  for  the  satis- 
faction of  their  debts  on  subsequently  discovered  estate,  (b)     The 
time  is  computed  from  the  date  of  the  letters  of  administration. 
The  omission  of  the  administrator  to  give  notice  of  final  settlement 
does  not  relieve   creditors  from  the  necessity  of  presenting  their 
claims.(c)     Femmes  couverte,  infants,  persons   of    unsound   mind, 
imprisoned,  or  beyond  seas,  may  present  their  claims  at  any  time 
within  two  years  after  their  respective  disabilities  shall  be  removed. 
This  provision,  however,  has  reference  only  to  such  demands  as  are 
required  to  be  exhibited  to  the  court.    It  does  not  embrace  the 
widow's  award,  (d) 

15.  DECISIONS.     Presentation  of  claim  by  copy  to  one  S.,  at  the 
request  of  the  administratrix,  and  again  by  giving  the  attorney  of 
the  estate  a  copy,  held  a  sufficient  presentation.  (<?) 

PRESENTING  AND  REFERRING  CLAIMS.  An  account  was  filed 
against  an  estate  after  the  expiration  of  two  years  from  the  time  of 
granting  letters  of  administration  upon  the  estate.  Held,  that  the 
creditor  had  the  right  to  have  his  claim  passed  on,  and  a  judgment 
presently  for  the  amount  due,  to  be  satisfied  pro  rata  out  of  any 

(7>)  15  111.  49 ;  11  id.  341;  5  Qilm.  26  ;        (d)  Miller  v.  Miller,  82  111.  463. 
14  111.  9.  (e)  Wells  v.  Miller,  45  111.  382. 

(c)  11  111.  216,  349. 


230  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII. 

Claims  against  estates. 

estate  that  might  afterward  be  found  not  inventoried  or  accounted 
for  by  the  adminisfcrator.(e) 

The  filing  of  a  claim  against  an  estate  in  the  probate  court  does 
not  arrest  the  general  statute  of  limitations.(/) 

It  is  a  sufficient  exhibition  of  a  claim  against  an  estate  to  file  the 
same,  or  a  copy  thereof,  with  the  probate  court.(^) 

Equitable  claims  against  an  estate  may  be  allowed  by  the  probate 
court,  (h) 

PARTNERSHIP  DEBTS,  WHEN.  No  claim  should  be  allowed  against 
an  estate  fora  partnership  debt  till  it  is  shown  that  all  the  partner- 
ship assets  have  been  exhausted,  (h) 

PARTNERSHIP  DEBTS  —  PAYMENT  OF,  BY  ADMINISTRATOR.  While 
the  individual  creditors  of  an  estate  can  insist  on  the  full  payment 
of  their  debts,  before  the  partnership  creditors  can  receive  anything 
from  the  individual  assets,  yet,  as  to  the  heirs,  the  mere  order  of 
payment  is  a  matter  of  no  moment,  provided  the  partnership  debts 
and  the  individual  debts  together  fairly  absorb  all  the  partnership 
assets  and  the  assets  of  the  estate. (i) 

An  administrator's  claim,  if  just,  is  as  much  entitled  to  payment 
as  that  of  any  other  creditor.  (/) 

MARSHALLING  ASSETS.  The  personal  estate  is  primarily  liable 
for  the  payment  of  the  debts,  and  must  be  exhausted  before  resort 
can  be  had  to  the  real  estate. (k)  This  is  so  whether  the  debt 
claimed  be  secured  or  not,  and  the  heirs  and  devisees  have  a  right 
to  enforce  this  rule.(Z) 

ARBITRATION.  All  claims  against  an  estate  must  be  presented 
to  the  probate  court,  and  be,  there,  adjusted  before  they  can  be 
legally  paid  out  of  the  assets  of  the  estate.  They  cannot  be  sub- 
mitted to  arbitration  by  an  executor  or  administrator,  (m) 

ALLOWANCE  OF  CLAIMS  AGAINST  ESTATES.  The  ninety-fifth  sec- 
tion of  the  statute  of  wills  contemplates  that  the  heirs  are  parties,  or 

(e)  Thorn  v.  Watson,  Adm'r,  5  Gilm.  (j)  Johnson  v.  GUlett,  52  HI.  358. 

26.  (*)  Ryan  v.  Jones,  15  111.  1 . 

(/)  Reitzett  v.  Miller,  25  111.  67.  (I)  Sutherland  v.  Harrison,  86   111. 

(g)  The  People  v.  White,  11  111.  342.  363. 

(h)  Moline  Water  Power  &  Manuf.  (m)  Reitzell  v.  Miller,  25  111.  67;  Win- 
Co,  v.  Webster,  26  111.  233.  gate  v.  Pool,  id.  118 ;  Clark  v.  Hogle, 

(t)  The  People  v.  Lott,  36  111.  447.  52  id.  427. 


CH.  VIII.]  EXPENSES,   ALLOWANCES   AND   CLAIMS.  231 

Claims  against  estates. 

may  become  parties  to  the  proceedings  in  the  county  court  on  the 
presentation  and  allowance  of  claims  against  an  estate.  Under  this 
section,  the  heirs  have  a  right  to  be  present  and  contest  the  justice 
of  the  claim.  The  heirs  having  this  right  to  appear  and  resist  the 
allowance  of  the  claim,  the  adjudication  of  the  court  in  making  the 
allowance  must  be  held  prima  facie  binding  upon  them,  though  they 
neglect  to  avail  themselves  of  such  right.  But  the  allowance  is  con- 
clusive upon  the  executor  and  administrator,  and  has  the  force  and 
effect  of  a  judgment  until  it  is  reversed.(w) 

LIMITATION.  The  time  within  which  claims  must  be  presented 
against  an  estate  is  to  be  computed  from  the  date  of  the  letters  of 
administration,  and  not  from  the  date  of  the  notice  requiring  credi- 
tors to  exhibit  them  ;  and  those  who  fail  to  exhibit  their  claims 
within  two  years  after  the  grant  of  letters  of  administration  are 
precluded  from  all  participation  in  the  estate  inventoried  or  ac- 
counted for  during  that  period.(o) 

If  an  administrator  does  not  return  an  inventory  of  the  real  estate 
of  the  intestate  within  two  years,  a  creditor  who  presents  his  claim 
before  the  return  of  the  inventory,  but  after  the  expiration  of  two 
years  from  the  granting  of  letters  of  administration,  may  share  in 
the  proceeds  of  the  inventory.(jo) 

LACHES  OF  CKEDITOR.  In  determining  the  question  whether  a 
creditor  has  waived  his  lien  upon  the  property  of  an  intestate,  by 
failing  to  pursue  his  remedy  within  a  reasonable  time,  in  the  absence 
of  legislative  rule,  each  case  must  be  left  to  depend  largely  upon  its 
own  circumstances.(g') 

HEIRS  —  LIMITATION.  The  failure  of  an  administrator  to  plead 
the  limitation  of  two  years  on  claims  against  the  estate,  will  not  pre- 
clude the  heirs  from  pleading  it  on  settlement  with  the  adminis- 
trator, (r) 

LIEN  —  LIMITATION.  A  creditor  will  be  considered  to  have  waived 
his  lien  upon  the  property  of  an  intestate  if  he  does  not  pursue  his 
remedy  in  a  reasonable  time.  If  prosecuted  in  a  reasonable  time,  the 
lien  will  be  good/  against  purchasers  from  heirs  or  devisees.  By 

(ri)  Mason  v.  Bair.  33  111.  195.  (q)  Rosenthal  v.  Renick,  44  111.  202 ; 

(o)  The  People  v.  White,  11  111.  342  ;  Moore  v.  Ellsworth,  51  id.  308  ;  Clarkv. 

Stillman  v.    Young,  16  id.  318 ;  Win-  Hogle,  52  id.  427. 

gate  v.  Pool,  25  id.  118.  (r)  Stillman  v.  Young,  16  111.  318. 

(p)  Sloo  v.  Pool,  15  111.  47. 


232  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.   VIII. 

Claims  against  estates. 

analogies  of  the  law,  it  would  seem  that  seven  years  from  the  death 
of  the  intestate  should  bar  such  liens,  (s) 

In  a  suit  against  an  executor,  after  the  expiration  of  two  years 
from  the  date  of  his  letters  testamentary,  upon  a  demand  which  had 
not  been  presented  for  allowance  within  that  time,  the  judgment 
should  direct  the  levy  to  be  made  out  of  property  belonging  to  the 
estate  which  has  not  been  inventoried,  whether  found  previous  or 
subsequent  to  the  judgment. (£) 

Where  a  person  died  in  Ohio,  having  devised  all  his  real  estate  in 
Ohio,  Indiana  and  Illinois,  to  K.,  first  to  pay  all  his  debts  and  then 
to  convey  it  to  his  son  H.,  and  subsequently  such  trustee  and  devisee, 
died,  the  devisee  H.  leaving  a  will,  and  administrators  with  the  will 
annexed  were  appointed  in  each  of  the  States  of  Ohio  and  Illinois. 
Held,  that  the  lien  of  a  creditor  upon  the  property  of  the  testator 
was  not  barred  by  the  failure  to  pursue  his  remedy  within  seven 
years  after  the  death  of  the  testator,  it  appearing  that  the  property 
against  which  the  lien  was  sought  to  be  enforced,  and  of  which  the 
devisee  H.  died  seized,  had  never  been  aliened  by  the  devisee,  nor  any 
improvements  made  thereon  by  Mm,  and  that  the  estate  was  still 
unsettled  in  Ohio.(w) 

LIMITATION.  Where  the  plaintiff  has  failed  to  exhibit  his  demand 
against  the  estate  within  the  two  years  limited  by  the  statute,  he  is, 
nevertheless,  entitled  to  a  judgment  against  the  administrator  for 
the  amount  found  to  be  due  him,  to  be  satisfied  out  of  such  assets  as 
may  thereafter  be  discovered,  and  which  have  not  been  inventoried 
or  accounted  for  by  the  administrator,  (v] 

As  between  the  wards  and  the  widows  of  an  intestate,  (w) 

How  the  widow  may  lose  her  priority  of  preference,  and  to  what 
extent,  (w) 

(8)  McCoy  v.  Morrow,  18  111.  519;        (v)  Judy  v.KeUey,  11  111.211 ;  Rowan 

Unknown    Heirs    of  Langworthy    v.  v.   Kirkpatriek,  14  id.  1 ;  Peacock  v. 

Baker,  23  id.  484     '  Haven,  22  id.  23. 

(t)  Bradford  v.  Jones,  17  111.  93.  (w)  Cruie  v.  Cruce,  21  111.  46. 

(«)  Rosenthal  v.  Renick,  44  HI.  202  ; 
Moore  v.  Ellsworth,  51  id.  308. 


CH.  VIII.]  EXPENSES,   ALLOWANCES   AND    CLAIMS.  233 


SECTION  III.  —  LEGACIES. 

1.  Refunding  bond  to  be  given. 

2.  Duty  of  legatee  to  refund ;  refusal  on  citation  and  demand  deemed  a  breach 

of  the  bond. 

3.  Payment  of  legacies. 

4.  The  bond. 

5.  Decisions. 

1.  Whenever  it  shall  appear  that  there  are  sufficient  assets  to  satisfy 
all  demands  against  the  estate,  the  court  shall  order  the  payment  of 
all  legacies  mentioned  in  the  will  of  the  testator,  the  specific  lega- 
cies being  the  first  to  be  satisfied,  (x) 

Executors  and  administrators  shall  not  be  compelled  to  pay 
legatees  or  distributees  until  bond  and  security  is  given  by  such 
legatees  or  distributees  to  refund  the  due  proportion  of  any  debt 
which  may  afterward  appear  against  the  estate,  and  the  costs  attend- 
ing the  recovery  thereof;  such  bond  shall  be  made  payable  to  such 
executor  or  administrator,  and  shall  be  for  his  indemnity  and  filed 
in  the  court. (y} 

2.  When,  at  any  time  after  the  payment  of  legacies  or  distribu- 
tive shares,  it  shall  be  necessary  that  the  same  or  any  part  thereof 
be  refunded  for  the  payment  of  debts,  the  county  court,  on  applica- 
tion made,  shall  apportion  the  same  among  the  several  legatees  or 
distributees  according  to  the  amount  received  by  them,  except  the 
specific  legacies,  which  shall  not  be  required  to  be  refunded,  unless 
the  residue  is  insufficient  to  satisfy  such  debts ;  and  if  any  distribu- 
tee or  legatee  refuses  to  refund  according  to  the  order  of  the  court, 
within  sixty  days  thereafter,  and  upon  demand  made,  such  refusal 
shall  be  deemed  a  breach  of  his  bond  given  to  the  executor  or  ad- 
ministrator as  aforesaid,  and  an  action  may  be  instituted  thereon  for 
the  use  of  the  party  entitled  thereto ;  and  in  all  cases  where  there  is 
no  bond,  an  action  of  debt  may  be  maintained  against  such  distrib- 
utee or  legatee,  and  the  order  of  the  court  shall  be  evidence  of  the 
amount  due.  (2)  • 

3.  PAYMENT  OF  LEGACIES.     After  the  executor  has  paid  all  the 
debts  of  the  deceased,  and  settled  the  accounts  of  the  estate,  his 
next  duty  is  to  execute  the  will  of  the  testator  by  paying  the  lega- 
i-ics  of  the  will,  and  generally  to  fulfill  the  wishes  of  the  testator. 

(aj)  §  115,  R.  S.  1874,  p.  125.  (z)  §  117,  R.  S.  1874,  p.  125. 

(iO§  116.  id. 

30 


EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII. 

Legacies. 

A  legacy  is  a  bequest  or  gift  of  personal  property  by  will.  It  is 
general  or  specific.  General,  where  the  legacy  is  not  described,  as 
a  particular  fund  or  article  of  property;  where  it  is  so  described,  it 
if  specific.  Although  the  courts  are  averse  to  construing  legacies  to 
be  specific,  yet,  if  the  words  clearly  indicate  an  intention  to  sepa- 
rate the  particular  thing  bequeathed  from  the  general  property  of 
the  testator,  they  shall  have  that  operation. 

A  legacy  is  sufficiently  specific  if  the  money  or  property  is  indi- 
cated in  such  a  way  as  to  be  identified  as  distinct  from  the  general 
funds  or  property. 

The  executors  must  be  careful  to  pay  the  legacy  into  the  hand 
which  has  authority  to  receive  it. 

An  executor  cannot  pay  a  legacy  to  a  minor,  to  his  parents,  or 
other  relatives,  without  sanction  of  a  court  of  equity,  (a) 

If  a  legacy  be  given  to  a  married  woman,  it  must  not  be  paid  to 
her  husband.(i)  It  is  a  general  rule  that  a  legacy  given  by  a  debtor 
to  his  creditor,  which  is  equal  to  or  greater  than  the  debt,  shall  be 
considered  a  satisfaction  of  it,  but  on  this  point  the  intention  of 
the  testator  is  the  criterion,  (c) 

In  case  of  a  deficiency  of  assets  to  pay  debts,  specific  legacies, 
although  not  liable  so  long  as  there  are  other  assets,  abate  in  pro- 
portion among  themselves. (d) 

An  executor  has  no  right  to  give  himself  the  preference  in  regard 
to  a  legacy. 

4.    BOND  BY  LEGATEE  OR  DISTRIBUTEE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  we,  A  B  and  C  D,  of  the  county 
of  ,  in  the  State  of  ,  are  held  and  firmly  bound  unto  J  K,  executor 

of  the  last  will  and  testament  of  E  F,  deceased,  in  the  penal  sum  of  five  hun- 
dred dollars,  for  the  payment  of  which  well  and  truly  to  be  made,  we  bind 
ourselves,  our  heirs,  executors  and  administrators,  jointly  and  severally,  firmly 
by  these  presents. 

Witness  our  hands  and  seals,  this        day  of  ,  18    .* 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  above  boun- 
den  A  B,  as  one  of  the  legatees  of  the  estate  of  E  F,  deceased,  this  day  re- 
ceived of  the  said  J  K,  executor, of  the  last  will  and  testament  of  said  E  F, 
the  legacy  in  the  last  will  and  testament  of  the  said  E  F,  deceased,  bequeathed 
to  him  the  said  A  B,  being  the  sum  of  .  Now  should  the  said  A  B,  lega- 

tee as  aforesaid,  well  and  truly  refund  his  due  proportion  of  any  and  all  debts 

(a)  Toll.  Ex.  319.  (c)  Toll.  Ex.  335. 

(6)  Toll.  Ex.  320.    See  Hill's  Chan.        (d)  Toll.  Ex.  340. 
Pr.  610. 


CH.  VIII.]  EXPENSES,   ALLOWANCES   AND   CLAIMS.  235 

Legacies. 

which  may  hereafter  appear  against  the  estate  of  the  said  E  F,  deceased,  and 
the  costs  attending  the  recovery  thereof,  to  the  said  J  K,  executor  as  aforesaid, 
well  and  truly  refund  his  due  proportion  of  any  and  all  debts  which  may 
hereafter  appear  against  the  estate  of  the  said  E  F,  deceased,  and  the  costs 
attending  the  recovery  thereof,  to  the  said  J  K,  executor  as  aforesaid,  well  and 
truly  refund  his  due  proportion  of  any  and  all  debts  which  may  hereafter 
appear  against  the  estate  of  the  said  E  F,  deceased,  and  the  costs  attending 
the  recovery  thereof,  to  the  said  J  K,  executor  as  aforesaid,  when  thereunto 
requested,  then  the  above  obligation  to  be  void ;  otherwise  to  be  and  remain  in 
full  force  and  virtue. 

A  B,    [SEAL.] 
C  D.    LSEAL0 

5.  DECISIONS  —  THE  ADMINISTKATOR  IN  POSSESSION.  A  grantee 
or  purchaser  is  liable  to  account  for  rents  and  profits  in  excess  of 
taxes,  necessary  repairs,  debts  of  estate  paid  by  him,  and  other  proper 
charges,  (e) 

A  legacy  payable  to  a  minor  on  his  attaining  his  majority, 
goes  to  his  administrator  at  the  point  of  time  at  which,  if  living, 
he  would  have  become  of  age.  (Ruffin  v.  Farmer,  72  111.  615.) 

Pecuniary  legacies  must  be  paid  from  the  personal  property  of 
testator.  In  case  of  deficiency  of  personal  property,  the  legatees 
must  abate  unless  by  will  the  realty  is  charged  with  their  payments. 
(Heslop  v.  Qatton,  71  111.  528.) 

EEFUNDING  BOND  —  DEMAND.  Where  an  administrator  died  and 
no  administrator  was  appointed  for  him,  the  distributees  alleged  that 
on  final  settlement  the  accounts  of  the  administrator  showed  that 
there  was  money  in  his  hands  belonging  to  the  estate,  that  the 
county  court  thereupon  ordered  him  to  pay  the  same  to  the  heirs, 
specifying  the  sum  due  to  each,  that  the  administrator  was  dead,  and 
the  money  unpaid ;  the  securities  demurred.  Held,  that,  as  demand 
on  the  administrator  was  rendered  impossible,  and  as  there  was  no 
one  in  existence  to  whom  the  refunding  bond  could  be  given,  neither 
the  proof  of  a  demand  nor  the  giving  of  such  bond  should  be 
required.  (<?) 

(e)    Kruse  v.  Steffens,  47  111.  112.  (g)  The  People  v.  Admire,  39  111.  253. 


236  EXPENSES,   ALLOWANCES   AND   CLAIMS.  [CH.  VIII. 

Legacies. 

Acceptance  of  a  draft  drawn  by  distributee  in  such  case,  for  his 
share,  binds  the  executor  in  his  individual  capacity  only,  (fi) 

Payment  of  distributive  share  not  enforced  till  after  order  made 
by  probate  court,  and  execution  of  refunding  bond  if  needed.(t) 

In  the  distribution  of  the  assets  of  deceased  persons,  judgment 
creditors  and  simple  contract  creditors  are  placed  upon  an  equal 
footing ;  and  this  rule  applies  to  an  administrator  who  is  a  judgment 
creditor.(y) 

Creditors  and  distributees,  but  not  an  administrator  de  bonis  non, 
may  charge  an  antecedent  administrator  with  a  devastavit.  An 
administrator  de  bonis  non  can  only  administer  upon  such  estate  as 
has  not  been  administered  upon  by  others.(&) 

The  husband  administering  on  his  wife's  estate  must  distribute  the 
estate  according  to  the  statute  of  distribution.  (I) 

A  creditor  obtaining  judgment  after  the  lapse  of  the  two  years  is  not 
to  be  confined  to  assets  discovered  after  his  judgment  is  rendered,  but 
is  entitled  to  participate  in  assets  discovered  and  inventoried  after 
the  lapse  of  two  years  from  the  granting  of  letters  of  administra- 
tion, (m) 

EXHIBITING  CLAIM  NOT  MATURED.  A  executed  a  bond  of  indem- 
nity to  B,  the  damages  depending  on  a  contingency  that  did  not 
happen  until  after  lapse  of  two  years  from  the  granting  of  letters  on 
the  estate  of  A,  deceased.  Held,  no  suit  could  be  instituted  within 
the  two  years,  and  the  claim  was  barred  except  as  to  future  dis- 
covered property,  (m) 

If  a  party  having  a  claim  against  an  estate  is  sued  by  the  representa- 
tive of  it  after  two  years  from  the  granting  of  letters  of  administra- 
tion, he  can  plead  his  claim  by  way  of  set-off ;  and  if  any  balance  is 
adjudged  to  him,  it  will  be  paid  out  of  any  estate  thereafter  dis- 
covered and  inventoried.(tt) 

FINAL  ACCOUNTINGS.  "When  an  administrator's  acts  have  been 
approved,  and  his  resignation  accepted,  and  his  discharge  granted, 
these  matters  become  res  ajudicata,  and  are  binding  until  they  shall 
be  set  aside.(o) 

(A)  The  People  v.  Admire,  39  111.  252.  (t)    Townsend  v.  Raddiffe,  44  111.  446. 

(»)  Wisdom  v.  Becker,  52  111.  342.  (m)  Stone  v.  Clarke's  Adm'rs,  40  111. 

(j)  Paschall  v.    Hailman,    4  Gilm.  411. 

285 ;  Turney  v.  Gates,  12  111.  141.  (n)  Peacock  v.  Haven,  22  111.  23. 

(k)  Rowan  v.  Kirkpatrick,  14  111.  8  ;  (o)  Short  v.  Johnson,  25  111.  489. 
Short  v.  Johnson,  25  id.  489 ;  Stose  v. 
The  People,  id.  600. 


CH.  VIII.J  EXPENSES,   ALLOWANCES   AND   CLAIMS.  237 

Legacies. 

Where  the  wife  and  the  surviving  partner  of  intestate  were 
appointed  administrators,  the  estate  not  owing  a  dollar,  and  being  a 
large  estate,  no  full  account  of  their  transactions  having  been 
exhibited  by  the  administrators,  and  upon  their  final  report  and 
petition  for  a  discharge,  a  mere  pittance  is  shown  to  be  left  for  the 
heirs,  the  order  approving  the  settlement  will  not  be  sustained.^) 

ADMINISTRATOR  —  PROOF  REQUIRED  TO  SET  ASIDE  SETTLEMENT. 
Before  a  court  of  equity  will  set  aside  as  fraudulent  or  illegal  a  set- 
tlement of  his  accounts,  made  by  an  administrator  more  than  sixteen 
years  before  the  filing  of  the  bill,  and  approved  by  the  probate  court, 
it  will  require  clear  proof  of  the  alleged  fraud  or  illegality.^) 

ORDERS  OF  PROBATE  COURT — EFFECT  OF,  AS  PROOF.  The  allow- 
ance against  an  estate,  of  partnership  debts,  must  be  considered  as  at 
least  prima  facie  proof  that  the  firm  assets  were  wholly  insufficient 
for  their  payment,  and  the  approval  by  the  court  of  an  account 
showing  their  payment  as  at  least  prima  facie  proof  that  the  firm 
assets  had  been  exhausted.(g') 

(p)  Hewwd  v.  Slagle,  52  I1L  336.  (q)  The  People  v.  Lott,  36  111.  447. 


238  *  ACCOUNTS.  [CH.  IX. 

By  the  executor  or  administrator. 

CHAPTER  IX. 

ACCOUNTS. 

SECTION   I.  By  the  executor  or  administrator. 
II.  By  the  guardian  and  conservator. 


SECTION  I.  —  ACCOUNTS  BY  THE  EXECUTOE  OE  ADMINISTEATOB. 

1.  General  instructions  to  the  executor  or  administrator. 

2.  Settlements  to  be  made  annually  at  least. 

3.  Apportionments  to  be  made. 

4.  Settlement  may  be  enforced. 

5.  Devastavit,  etc. 

6.  Administrator's  account. 

7.  Procedure  for  administrator  or  executor  when  cited  to  account. 

8.  Form  of  account. 

1.  INSTEUCTIONS  TO  THE  EXECUTOE  OE  ADMINISTEATOE.    (1)  Pre- 
sent to  the  court  an  inventory  and  appraisement  of  the  estate  within 
three  months  from  the  date  of  your  letters. 

(2)  Post    notices,  and  publish  for  an  adjudication  of   claims, 
within  six  months  from  the  date  of   your  appointment,  and  be 
present  on  the  day  named  in  the  notice. 

(3)  Sell  the  personal  property  at  public  auction  as  soon  as  con- 
venient after  the  inventory  and  appraisement  are  approved,  unless 
it  is  selected  by  the  widow  or  specially  bequeathed. 

(4)  Pay  no  claims  that  accrued  during  the  life-time  of  the  de- 
ceased until  they  have  been  allowed  by  the  court. 

(5)  Take  and  carefully  keep  receipts  for  all  payments  respectively. 

(6)  Make  application  for  the  sale  of  real  estate  as  soon  as  you 
find  that  the  personal  estate  will  not  be  sufficient  to  pay  the  claims 
against  the  estate. 

(7)  At  the  end  of  one  year  from  the  date  of  your  appointment, 
render  your  account  to  the  court,  and  every  year  thereafter,  until  the 
estate  is  fully  settled. 

2.  SETTLEMENT  BY  ADMINISTEATOES  AND  EXECUTOES.    All  exec- 
utors and  administrators  shall  exhibit  accounts  of  their  administra- 
tion for  settlement,  to  the  county  court  from  which  the  letters  tes- 
tamentary or  of  administration  were  obtained,  at  the  first  term 


CH.  IX.J  ACCOUNTS.  239 

By  the  executor  or  administrator. 

thereof  after  the  expiration  of  one  year  after  the  date  of  their  let- 
ters; and  in  like  manner  every  twelve  months  thereafter,  or  sooner, 
if  required,  until  the  duties  of  their  administration  are  fully  com- 
pleted. Provided,  that  no  final  settlement  shall  be  made  and  ap- 
proved by  the  court,  unless  the  heirs  of  the  decedent  have  been 
notified  thereof,  in  such  manner  as  the  court  may  direct,  (a) 

3.  Upon  every  such  settlement  of  the  accounts  of  an  executor  or 
administrator,  the  court  shall  ascertain  the  whole  amount  of  moneys 
and  assets  belonging  to  the  estate  of  the  deceased,  which  have  come 
into  the  hands  of  such  executor  or  administrator,  and  the  whole 
amount  of  debts  established  against  such  estate;  and  if  there  is  not 
sufficient  to  pay  the  whole  of  the  debts,  the  moneys  aforesaid  shall 
be  apportioned  among  the  several  creditors  pro  rata,  according  to 
their  several  rights,  as  established  by  this  act;  and  thereupon  the 
court  shall  order  such  executor  or  administrator  to  pay  the  claims 
which  have  been  allowed  by  the  court,  according  to  such  apportion- 
ments; and  the  court,  upon  every  settlement,  shall  proceed  in  like 
manner  until  all  the  debts  due  are  paid,  or  the  assets  exhausted. (b) 

4.  The  county  courts  of  this  State  shall  enforce  the  settlements  of 
estates  within  the  time  prescribed  by  law,  and  upon  the  failure  of 
an  executor  or  administrator  to  make  settlement  at  the  next  term  of 
the  court  after  the  expiration  of  said  time,  the  court  shall  order  a 
citation  to  issue  to  the  sheriff  of  the  county  where  the  executor  or 
administrator  resides,  or  may  be  found,  requiring  said  executor  or 
administrator  to  appear  at  the  next  term  of  the  court  and  make 
settlement  of  the  estate,  or  show  cause  why  the  same  is  not  done; 
and,  if  an  executor  or  administrator  fails  to  appear  at  the  time  re- 
quired by  such  citation,  the  court  shall  order  an  attachment  requir- 
ing the  sheriff  of  the  county  where  the  executor  or  administrator 
resides,  or  may  be  found,  to  bring  the  body  of  said  executor  or  ad- 
ministrator before  the  court ;  and  upon  a  failure  of  an  administra- 
tor or  executor  to  make  settlement,  under  the  order  of  the  court, 
after  having  been  so  attached,  he  may  be  dealt  with  as  for  contempt, 
and  shall  be  forthwith  removed  by  the  court,  and  some  discreet  per- 
son appointed  in  his  stead ;  the  costs  of  such  citation  or  attachment 
to  be  paid  by  the  delinquent  executor  or  administrator,  and  the 
court  shall  enter  a  judgment  therefor,  and  a  fee  bill  may  issue 
thereon.     All  moneys,  bonds,  notes  and  credits,  which  any  adminis- 

(a)  §  111,  R.  S.  1874,  p.  124.  (6)  §  112,  R.  S.  1874,  p.  124. 


ACCOUNTS.  [CH.  IX. 


By  the  executor  or  administrator. 


trator  or  executor  may  have  in  his  possession  or  control  as  property 
or  assets  of  the  estate,  at  a  period  of  two  years  and  six  months  from 
the  date  of  his  letters  testamentary  or  of  administration,  shall  bear 
interest  and  the  executor  or  administrator  shall  be  charged  interest 
thereon  from  said  period  at  the  rate  of  ten  per  cent,  or  after  two 
years  and  six  months  from  any  subsequent  time  that  he  may  have 
discovered  and  received  the  same,  unless  good  cause  is  shown  to  the 
court  why  such  should  not  be  taxed.(c) 

When  any  administrator  or  executor  shall  have  made  final  settle- 
ment with  the  court,  it  shall  be  the  duty  of  the  court  to  order  said 
administrator  or  executor  to  deposit  with  the  county  treasurer  such 
moneys  as  he  may  have  belonging  to  any  non-resident  or  unknown 
heir  or  claimant,  taking  his  receipt  therefor,  and  have  the  same  filed 
at  the  office  of  the  county  or  probate  court  where  such  settlement 
has  been  made.  The  person  or  persons  entitled  to  the  same  may, 
at  any  time,  apply  to  the  court  making  said  order  and  obtain  the 
same,  upon  making  satisfactory  proof  to  the  court  of  his,  her  or 
their  right  thereto.  (Act  of  1877,  Cothran's  Ann'd  Stats.,  82, 134. ) 

5.  If  any  executor  or  administrator  shall  fail  or  refuse  to  pay  over 
any  moneys  or  dividend  to  any  person  entitled  thereto,  in  pursuance 
of  the  order  of  the  county  court,  lawfully  made,  within  thirty  days 
after  demand  made  for  such  moneys  or  dividend,  the  court,  upon 
application,  may  attach  such  delinquent  executor  or  administrator, 
and  may  cause  him  to  be  imprisoned  until  he  shall  comply  with  the 
order  aforesaid,  or  until  such   delinquent  is  discharged  by  due 
course  of  law;  and,  moreover,  such  failure  or  refusal  on  the  part  of 
such  executor  or  administrator  shall  be  deemed  and  taken   in  law 
to  amount  to  a  devastavit,  and  an  action  upon  such  executor's  or 
administrator's  bond,  and  against  his  securities,  may  be  forthwith 
instituted  and  maintained;  and  the  failure  aforesaid  to  pay  such 
moneys  or  dividend   shall  be  a  sufficient  breach  to  authorize  a 
recovery  thereon,  (d) 

6.  ADMINISTRATOR'S  ACCOUNT.    This  embraces  a  statement  of 
the  amount  of  moneys  received  from  all  sources,  and  the  amount 
paid  out. 

STATE  OP  ILLINOIS,  ) 

County,      f* 

To  tlie  Hon.        ,  Judge  of  the  court  of       county,        Term,  A.  D.  18 

The  account  of  C  D,  administrator  of  the  goods,  chattels,  rights  and  credits 
of  A  B,  late  of  the  county  of  ,  and  State  of  Illinois,  deceased. 

The  said  administrator  charges  himself  as  follows : 
19    .  Jan.      1.    To  all  the  personal  property  as  per  appraisement  bill,  $875  63 

To  excess  of  amount  produced  at  the  sale 90  00 

Jan.     10.  To  cash  collected  of  E  F  on  note 6500 

"          To  cash  collected  of  G  H  on  account 37  00 

March  1.   To  cash  received  from  sale  of  real   estate  as  per  re- 

portof  sale  filed 965  00 

(c)  §  113,  R.  S.  1874,  p.  124.  (d)  S  114,  R    S.  1874,  p.  125 :  Goth- 

ran's  Stat.,  1880.  p.  78. 


OH.  IX.]  ACCOUNTS.  241 

By  the  executor  or  administrator. 

To  amount  of  sale  notes  due  Feb.  10, 1869,  not  collected,  to  wit  : 

E  D's  note $45  00 

P  K's  note  . .  34  65 


Total  amount  of  money  received  and  collected $2,112  28 

Contra. 

By  the  following  payments  to  creditors  of  deceased,  to  wit : 

18    .    Feb.    1.     To  John  Doe,  Voucher  No.  1 $95  00 

"     12.     To  Richard  Roe,  Voucher  No.  2 4000 

March  1.    By  cash  paid  clerk  of  court  for  his  fees,  as  per  Voucher 

No.  3 25  00 

March  1.     By  cash  paid  Chicago  Journal,  printers'   fees,  Voucher 

No.  4 2  50 

March  1.    By  cash  paid  J.  V.,  Esq.,  attorney's  fees,  Voucher  No.  5. .          40  00 


$202  50 

Recapitulation. 

Total  amount  received  and  notes  collected $2,112  28 

Total  amount  disbursed  . ,  202  50 


Balance  on  hand  subject  to  the  order  of  court $1,909  78 

Amount  of  claims  allowed  against  the  estate  unpaid,  due  as  fol- 
lows: 

To  L  Q 95  00 

ToP  Q 876  00 

ToRS 97500 

To  0  P. .  297  00 


Total  amount  allowed  against  the  estate  up  to  this  date $2,243  00 

From  which  deduct  amount  of  assets 1,909  78 


Exhibiting  a  deficit  of  assets $333  22 

All  of  which  is  respectfully  submitted. 

C  D, 

Administrator  of  A  B,  deceased. 
March  3, 18    . 

This  account  should  specify  particularly  each  sum  of  money 
received  or  paid,  from  whom,  and  when  received. 

The  administrator  should  always  take  a  receipt  from  the  person 
to  whom  he  pays  money.  He  must  file  the  receipts  in  cc  urt  when  he 
exhibits  his  account. 

7.  PROCEEDINGS  ON  CITATION  TO  ACCOUNT.  Prepare  your  ac- 
count by  charging  yourself  in  separate  items  with  all  the  money  you 
31 


24:2  ACCOUNTS.  ~CH.  IX. 

By  the  executor  or  administrator. 

have  received,  giving  dates  and  stating  from  whom  and  for  what 
the  same  was  received.  Credit  yourself  with  all  that  you  have  paid 
out,  giving  the  items,  but  include  no  claim  that  existed  in  the  life- 
time of  the  deceased,  until  it  has  been  allowed  by  the  county  court. 
Number  your  vouchers.  Draw  up  a  report  on  a  separate  paper  to 
accompany*  your  account,  in  which  give  a  brief  history  of  the  estate 
from  the  date  of  your  letters,  or  from  your  last  accounting,  as  the 
case  may  be,  stating  what  accounts,  if  any,  remain  uncollected,  and 
why  such  accounts  have  not  been  collected ;  the  personal  property 
unsold,  if  any,  and  why  it  has  not  been  disposed  of.  Answer  the 
citation  in  writing,  under  oath,  stating  why  you  have  not  presented 
your  account  as  required  by  the  statute. 

When  you  have  thus  prepared  your  papers,  present  them  to  the 
county  judge  in  open  court.  Obtain  his  approval  of  your  account, 
and  your  discharge  from  the  citation.  All  of  the  above  should  be 
done  at  or  before  the  hour  named  in  the  citation. 

8.  Your  account  may  be  in  the  following  form: 

Oeo.  Strong,  Adm'r,  in  account  with  the  estate  of  Henry  Jones,  Dr. 

To  all  the  personal  property  at  its  appraised  value $800  00 

To  cash  collected  of  John  Smith,  on  note 400  00 

To  cash  collected  of  Wm.  Wilson,  in  full  of  ac't 150  00 

To  cash  on  hand  at  time  of  death. .             2,000  00 


$3,350  00 

Or. 

By  cash  paid  clerk  for  letters,  voucher  No.  1 $3  20 

By  cash  paid  to  clerk  for  costs,  vxmcher  No.  2 2  00 

All  of  the  personal  property  taken  by  Jane  Jones  at  the  appraised 

value,  on  her  award,  voucher  No.  3 800  00 

By  cash  paid  Jane  Jones,  balance  on  her  award,  voucher  No.  4 75  00 

By  cash  paid  claim  of  Dr.  J.  N.  Banks,  allowed,  voucher  No.  5 20  00 

By  cash  paid  claim  of  Wm.  Smith,  voucher  No.  6 40  00 

By  cash  paid  appraisers,  voucher  No.  7 2  52 

By  cash  paid  for  printing  adjudication  notice,  voucher  No.  9 10  00 

By  commissions  on  $3,350,  at  four  per  cent. 134  00 

By  balance  in  hands  of  administrator 2,263  28 


$3,350  00 
Give  the  date  of  each  entry. 


OH.  IX.]  ACCOUNTS.  243 

By  the  guardian  and  conservator. 


SECTION  II.  —  ACCOUNTS  BY  THE  GUARDIAN  AND  CONSERVATOB. 

1.  Guardian  must  account  once  every  ytai. 

2.  He  must  pay  over  to  those  entitled  at  the  expiration  of  his  trust. 

3.  Accounts  must  be  filed. 

4.  Instructions  in  general  to  guardians  and  conservators. 

5.  Accounts,  how  kept. 

6.  Form  of  report  to  the  court  in  accounting. 

7.  Another  form. 

1.  The  guardian  shall,  at  the  expiration  of  a  year  from  his  ap- 
pointment, SETTLE  HIS  ACCOUNTS  as  guardian*  with  the  county 
court,  and  at  least  once  every  three  years  thereafter,  and  as  much 
of  tener  as  the  court  may  require,  (e) 

2.  GUARDIAN  TO  PAT  OVER.     At  the  expiration  of  his  trust,  he 
shall  pay  and  deliver  to  those  entitled  thereto  all  the  money,  estate 
and  title  papers  in  his  hands  as  guardian,  or  with  which  he  is 
chargeable  as  such.  (/) 

3.  ACCOUNT  TO  BE  FILED.     On  every  accounting  and  final  settle- 
ment of  guardian  he  shall  exhibit  and  file  his  account  as  such 
guardian,  setting  forth  specifically,  in  separate  items,  on  what  ac- 
count expenditures  were  made  by  him,  and  all  sums  received  and 
paid  out  since  his  last  accounting,  and  on  what  account  each  was 
received  and  paid  out,  and  showing  the  true  balance  of  money  on 
hand,  which  account  shall  be  accompanied  by  proper  vouchers,  and 
signed  by  him  and  verified  by  his  affidavit,  (g) 

4.  INSTRUCTIONS  TO  GUARDIANS  AND  CONSERVATORS.    (1)  Pre- 
sen  t  to  the  court  an  inventory  of  the  estate  of  your  wards  within 
three  months  from  .the  date  of  your  letters. 

(«)    §  14,  R.  S.  1874,  p.  560.  (g)  §  16,  R.  S.  1874,  p.  560. 


*  To  ACT  FOB  WARD,  GENERALLY.  The  guardian  shall  settle  all  accounts  of  his 
ward,  and  demand  and  sue  for,  and  receive  in  hta  own  name  as  guardian,  all  personal 
property  of  and  demands  due  the  ward,  or  with  the  approbation  of  the  court  compound 
for  the  same,  and  give  a  discharge  to  the  debtor  upon  receiving  a  fair  and  just  divi- 
dend of  his  estate  and  effects.  §  17,  Id. 

AND  IN  SUITS.  He  shall  appear  for  and  represent  his  ward  in  all  legal  suits  and 
proceedings,  unless  another  person  is  appointed  for  that  purpose  as  guardian  or  next 
friend  ;  but  nothing  contained  in  this  act  shall  impair  or  affect  the  power  of  any  court 
or  justice  of  the  peace  to  appoint  a  guardian  to  defend  the  interest  of  a  minor  1m- 
pleaded  in  such  court  or  interested  in  a  suit  or  matter  therein  pending,  nor  their 
power  to  appoint  or  allow  any  person  as  next  friend  for  a  minor  to  commence,  prose- 
cute or  defend  any  suit  in  his  behalf.  §  18,  id. 


244  ACCOUNTS.  [CH.  IX. 

By  the  guardian  and  conservator. 

(2)  Obtain  an  order  of  court  to  appropriate  not  to  exceed  a  cer- 
tain sum,  for  the  nurture  and  education  of  your  wards. 

(3)  Make  no  lease  of  the  land  of  your  wards,  except  under  the 
order  of  court. 

(4)  Before  loaning  any  of  the  money  of  your  wards,  have  the 
security  approved  by  the  court. 

(5)  Procure  an  account  book  and  enter  therein  an  account  of  all 
moneys  expended  and  received  with  dates,  and  take  a  receipt  for 
all  payments. 

(6)  At  the  end  of  one  year  from  the  date  of  your  letters  of  guar- 
dianship, render  your  account  to  the  court,  and  every  year  there- 
after until  your  wards  become  of  age,  and  then  obtain  your  dis- 
charge. 

5.  How  KEPT.  The  guardian  is  required  to  render  an  account  and 
should  therefore  keep  one,  containing  debts  and  credits,  or  of  his 
receipts  and  disbursements,  from  whom  received,  and  to  whom  paid 
and  on  what  account.  If  there  be  several  wards  a  separate  account 
with  each  must  be  kept  similar  in  form  to  the  accounts  kept  by 
business  men,  but,  if  possible,  with  more  care.  He  should  take  a 
voucher  from  every  person  to  whom  he  pays  the  ward's  money,  to  be 
carefully  numbered,  filed,  and  with  the  account  presented,  that  the 
court  may  see  that  the  money  has  been  paid,  and  for  articles  suita- 
ble and  necessary  to  the  condition  in  life  of  his  ward.  The  court 
has  power  to  cite  the  guardian  to  make  an  inventory  and  account, 
upon  oath  for  adjustment,  but  without  waiting  to  be  cited,  the 

DUTIES  OP  GUARDIAN.  The  guardian  shall  manage  the  estate  of  his  ward  frugally 
and  without  waste,  and  apply  the  income  and  profit  thereof,  so  far  as  the  same  may  be 
necessary,  to  the  comfort  and  suitable  support  and  education  of  his  ward.  §  19,  K. 
S.  1874,  p.  560. 

The  guardian  shall  educate  his  ward,  and  it  is  made  the  duty  of  all  civil  officers  to  give 
information  to  the  county  court  of  any  neglect  of  the  guardian  to  his  ward.  §  20,  id. 

When  there  is  not  money  of  the  ward  sufficient  to  teach  him  to  read  and  write, 
and  the  elementary  rules  of  arithmetic,  and  the  guardian  fails  or  neglects  to  have 
him  so  educated,  the  court  shall  have  pcwer  to  put  out  the  ward  to  any  other  person 
for  the  purpose  of  having  him  so  educated.  §  21,  id. 

It  shall  be  the  duty  of  the  guardian  to  put  and  keep  his  ward's  money  at  inter- 
est, upon  security,  to  be  approved  by  the  court,  or  invest  the  same  in  United  States 
bonds,  or  other  United  States  interest-bearing  securities.  Personal  security  may  be 
taken  for  loans  not  exceeding  one  hundred  dollars.  Loans  in  large  amounts  shall  be 
upon  real  estate  security.  No  loan  shall  be  made  for  a  longer  time  than  three  years, 
nor  beyond  the  minority  of  the  ward.  Provided,  the  same  may  be  extended  from  year 
to  year  without  the  approval  of  the  court.  The  guardian  shall  be  chargeable  with 
Interest  upon  any  money  which  he  shall  wrongfully  or  negligently  allow  to  remain  In 
his  hands  uninvested  after  the  same  might  have  been  invested.  §  22,  id. 


CH.  IX.]  ACCOUNTS.  245 

By  the  guardian  and  conservator. 

inventory  should  be  promptly  made  and  accounts  presented  and 
adjusted  with  the  court,  annually  at  least. 

6.  THE  ACCOUNT  may  be  substantially  in  the  following  form : 
GUARDIAN'S  ACCOUNT. 

STATE  OP  ILLINOIS,  j  In  the  County  Court  of          county, 

County. )  "  term,  A.  D.  18    . 

To  the  Judge  of  said  court : 

The  undersigned,  guardian  of  C  A  D,  would  respectfully  submit  to  the  court 
the  following  account  of  his  guardianship,  from  his  appointment  to        ,  18     . 

Account  of  E  B  M,  Guardian  of  0  A  D. 

Dr. 

Jan.  16,  1871.    To  cash  received  of  L  M,  administrator  of  T  F  D. . .      $500  00 
Jan.  23,     "       To  cash  for  rent  of  J  B  D,  on  lease  of  lot  10,  bl.  19, 

etc 300  00 

Mar.  19,     "       To  cash  of  W  J  B  on  his  note 3500 

$835  00 

Or. 
April  1, 1871.    By  cash  paid  Field,  Leiter  &  Co.,  for  merchandise 

as  per  bill  and  receipt $95  96 

May   16,     "       By  cash  paid  V  L  H  for  medical  attendance  as  per 

bill  and  receipt 130  00 

June    1,     "       By  cash  paid  for  U.  S.  government  bond 500  00 

By  cash  on  hand 109  04 

-« 

$835  00 


STATE  OP  ILLINOIS,  ) 

County,     y  ** 

E  B  M,  guardian  of  C  A  D,  being  duly  sworn,  says  that  the  foregoing  is  a  just, 
full  and  perfect  account  of  all  his  dealings  and  transactions,  and  of  all  moneys 
and  effects  received  and  paid  out  by  him  on  account  of  the  said  minor,  from 
the  time  of  his  appointment  to  the  day  of  ,  18  . 

EBM. 

Subscribed  and  sworn  to  before  me,  this ) 
day  of  ,  A.  D.  18     .  J 

,  Clerk. 

7.  Or  in  the  following  form  : 

EXPENSE  ACCOUNT.* 

William  Page,  Mary  Page  and  John  Page,  Wards, 

To  Andrew  H.  Dalton,  tJieir  Guardian,  Dr. 
To  cash  paid  John  G.  Gindele,  Clerk  of  Court,  for  letters  of  guardian- 
ship, voucher  1 $2  40 

*The  date  of  each  entry  in  the  account  should  be  given. 


246                                                     ACCOUNTS.  [CH.  IX. 
By  the  guardian  and  conservator. 

To  cash  paid  U.  S.  stamps 60 

To  cash  paid  taxes  on  No.  12  Lake  street,  for  1868,  voucher  2 $80  00 

To  cash  paid  insurance  on  No.  12  Lake  street,  for  1868,  voucher  3 . .  40  00 

To  cash  paid  for  attorney's  fees,  voucher  4 10  00 

To  cash  paid  repairing  sidewalk,  voucher  5 81  00 

$214  00 


H.  DAMON,  Guardian. 


Andrew  H.  Dalton,  in  account  with  (his  Ward),  John  Page,  Dr. 

To  cash  received  of  Joseph  Page,  Adm'r $1,000  00 

To  interest  on  same  one  year,  at  10  per  cent 100  00 

To  cash  received  for  rent  of  house  No.  12  Lake  street,  from  1st  of 

May,  1868,  to  1st  of  May,1869 600  00 

$1,700  00 


Or. 
By  cash  paid  for  board  from  1st  of  May,  1868,  to  1st  of  May,  1869,  at 

$2.00  per  week,  voucher  1 $104  00 

By  cash  paid  for  6  months'  tuition,  voucher  2 25  00 

By  cash  paid  for  1  coat,  $15, 1  pr.  boots,  $5,  voucher  3 20  00 

By  cash  paid  for  1  hat,  voucher  4 5  00 

By  cash  paid  Dr.  Banks  for  professional  services,  voucher  5  .......  20  00 

By  commissions  on  $1,700,  at  3  per  cent,  voucher  6 51  00 

By  one-tfcrd  common  expense  account  allowed 71  33 

By  balance  in  hands  of  guardian 1,403  67 

$1,700  00 


ANDKEW  H.  DALTON,  Guardian. 

Attach  the  usual  affidavit. 

If  you  are  guardian  but  for  one  minor,  or  the  items  of  yonr 
expenses  common  to  all  your  wards  are  few,  the  expense  account 
may  be  dispensed  with,  and  an  account,  similar  to  the  account  last 
given,  kept  with  each  ward,  will  alone  be  sufficient.  Your  account 
should  be  accompanied  with  a  written  report. 

CONSERVATOR'S  ACCOUNTS  should  be  made  in  the  same  way,  using 
the  word  conservator  in  lieu  of  guardian.(K) 

A  guardian  is  liable  to  account  to  his  ward,  although  five  years 
may  have  elapsed  after  the  ward  became  of  age  before  the  ward  com- 
menced proceedings,  (i)  Though  the  guardian  may  be  out  of  office, 

(h)  See  p.  138,  supra.  (i)  Gilbert  v.  Guptill,  34  111.  112. 


CH.  IX..]  ACCOUNTS.  24:7 

By  the  guardian  and  conservator. 

he  is  still  liable  to  account,  and  this  liability  continues  so  long  as 
his  bond  is  in  force.  A  guardian  loaning  money  of  ward  on  insuf- 
ficient security  is  responsible  for  the  amount  with  interest.  He 
should  be  charged  with  the  moneys  he  received  belonging  to  his 
ward,  and  compound  interest  thereon,  at  six  per  cent  from  the  day 
he  received  it,  until  his  ward  became  of  age,  and  interest  on  the 
amount  from  the  day  of  demand  by  the  administrator  of  the  ward 
to  the  time  of  entering  the  final  order.(y)  See  81  111.  103. 

A  guardian  must  testify  before  probate  court,  if  required,  as  to 
estate  of  ward.(j) 

The  powers  of  the  county  court,  to  compel  guardians  to  render  an 
account  of  their  guardianship  from  time  to  time,  are  co-extensive 
with  those  of  a  court  of  chancery.  The  accounts  are  to  be  rendered 
upon  oath,  and  the  court  may  require  their  settlement.  The  court 
may  allow  or  disallow  an  account  in  whole  or  in  part,  and  for  that 
purpose  may  examine  witnesses,  may  require  the  production  of 
vouchers,  and  do  all  other  acts  necessary  to  enable  it  to  arrive  at  a 
correct  conclusion  as  to  whether  or  not  the  account  ought  to  be 
allowed.  When  allowed,  it  is  required  to  be  entered  of  record.  (  k) 

The  allowance  of  a  guardian's  account  is  a  judicial  act,  and 
although  it  is  necessarily  made  during  the  minority  of  the  ward, 
still  it  is  to  be  presumed  the  act  was  properly  performed  until  the 
contrary  appears.  It  is  prima  facie  evidence  of  the  correctness  of 
the  account  allowed.  The  authority  of  the  county  court  in  this 
regard  is  similar  to  that  of  a  court  of  chancery.  If  an  account  has 
been  stated  erroneously,  the  ward  may  have  it  restated  correctly. 
If  the  guardian  has  omitted  to  charge  himself  with  any  thing,  or 
with  a  proper  sum,  the  ward  may  make  additional  charges  of  such 
matters.  If  the  guardian  has  obtained  an  allowance  in  his  account 
apparently  regular  upon  its  face,  the  ward  should  be  required  to 
rebut  the  prima  facie  presumption  of  its  regularity  before  the  guard- 
ian can  be  called  upon  to  establish  its  correctness ;  but,  if  it  appears 
from  the  face  of  the  account  that  items  were  improperly  allowed, 
no  such  presumption  will  sustain  them.(  k) 

Guardians  are  chargeable  with  waste  committed  or  suffered  by 
them.  In  England  it  was  considered  waste  to  cut  growing  trees,  or 
to  permit  them  to  be  cut.  Any  act  or  omission  which  diminished 
the  value  of  the  estate  or  its  income,  or  increased  the  burdens  upon 

(j)  Gilbert  v.  Guptill,  34  111.  112.  (K)  Bond  v.  Lockwood,  33  111.  213. 


24:8  ACCOUNTS.  [CH.  IX. 

By  the  guardian  and  conservator. 

it,  or  impaired  the  evidence  of  title  thereto,  was  considered  waste. 
Many  acts  which,  in  England,  would  be  waste,  are  not  such  here,  in 
consequence  of  the  difference  in  the  condition  of  the  two  countries. 
In  this  country,  whether  the  cutting  of  any  kind  of  tree  is  waste, 
depends  upon  the  question  whether  the  act  is  such  as  a  prudent 
farmer  would  do,  having  regard  to  the  land  as  an  inheritance,  and 
whether  the  doing  of  it  would  diminish  the  value  of  the  land  as  an 
estate.(Z) 

Where  a  trustee  or  guardian  employs  trust  funds  in  a  trade  or 
adventure  of  his  own,  whether  he  keeps  them  separate  or  mixes 
them  with  his  own  private  moneys,  and  notwithstanding  difficulties 
may  arise  in  the  latter  case  in  taking  the  account,  the  cestui  que 
trust,  if  he  prefers  it,  may  insist  upon  having  the  profits  made  by, 
instead  of  interest  upon  the  amount  of,  the  trust  funds  so  employed. 
It  is  sometimes  impracticable,  in  applying  this  rule,  to  trace  out  and 
apportion  the  profits  derived  by  a  trustee  from  the  employment  of 
trust  funds  along  with  his  own,  and  in  such  cases  the  court  fixes 
upon  a  rate  of  interest  as  the  supposed  measure  or  representative  of 
the  profits,  and  assigns  it  to  the  trust  fund.(Z) 

In  determining  what  expenditures  are  necessary  or  proper,  courts 
are  exceedingly  jealous  of  encroachments  upon  the  principal  of  the 
ward's  estate;  and  in  reference  to  them  it  has  been  repeatedly  held 
that  they  will  not  be  allowed,  except  for  necessaries,  without  an 
order  of  court  is  procured  before  making  the  expenditure,  unless 
the  guardian  can  show  such  a  state  of  facts  as  would  have  entitled 
him  to  the  order  had  he  applied  for  it  at  the  proper  time,  and  a 
reasonable  excuse  for  his  neglect  in  that  regard.  (T) 

Where  a  guardian  has  made  a  gift  to  his  ward,  and  entered  a 
credit  to  the  ward  in  his  account  therefor,  the  county  court,  in  view 
of  it,  may,  with  great  propriety,  allow  larger  expenditures  in  behalf 
of  the  ward  than  it  would  otherwise  do;  and  where  such  appears  to 
have  been  the  case,  it  would  be  a  gross  fraud  to  allow  the  guardian 
to  recall  the  gift.(Z) 

Commissions  will  not  be  allowed  to  a  guardian  for  money  of  his 
ward  in  his  hands  which  he  has  employed  in  his  own  business. 
Commissions  are  allowed  to  guardians  for  services  rendered,  and  not 
for  neglect  of  their  duties.(Z) 

The  statute  directs  the  expenditure  to  be  made  by  the  guardian 
(0  Bond  v.  Lockwood,  33  111.  213. 


CH.  IX.  J  ACCOUNTS.  24:9 

By  the  guardian  and  conservator. 

tinder  the  order  and  direction  of  the  court  of  probate,  and  requires 
that  the  rents  and  profits  arising  from  the  ward's  real  estate,  and 
the  interest  on  his  money,  should  be  first  resorted  to  for  his  educa- 
tion and  maintenance,  (m) 

A  died,  leaving  an  estate,  a  widow  and  two  children.  The  widow 
administered,  and  afterward  married  B,  who  collected  money  belong- 
ing to  the  estate  of  A,  and  died  without  accounting  therefor.  A's 
children  lived  with  B,  and  were  supported  by  him  until  his  death. 
In  a  suit  by  the  heirs  of  A  against  the  administrator  of  B,  for  an 
account,  the  court  held  that  B  had  made  himself  liable  as  guardian, 
by  intruding  on  the  children's  estate.  That  as  B  had  nurtured 
and  educated  the  children  during  his  life,  he  should  be  allowed  the 
interest  on  the  money  collected  by  him  during  his  life ;  but  as  he 
had  failed  in  duty  in  not  giving  bond,  his  estate  must  be  held  ac- 
countable for  the  principal  sum  collected  by  him,  and  interest 
thereon  since  his  death,  (m) 

Upon  a  settlement  of  his  account,  the  guardian,  by  order  of  court, 
gave  his  note  for  what  was  due  the  ward.  The  guardian  paid  part 
of  the  note  in  money  and  part  in  lumber,  which  was  received.  Held, 
that  the  payment  in  lumber  should  be  allowed  as  a  credit.(w) 

Persons  paying  money  to  the  guardian  are  not  responsible  for  its 
application.(w) 

It  is  the  duty  of  a  guardian  to  procure  an  order  of  the  proper 
court  before  making  expenditures;  and  that  duty  existed  as  well 
before  the  passage  of  the  statute  imposing  such  obligation  upon  him 
as  afterward.  A  guardian  may  support  his  ward  without  any  order 
of  court,  and  all  payments  which  he  can  show  were  necessary  for 
that  purpose  will  be  allowed  to  him.  Any  one  in  the  possession  of 
the  ward's  property,  or  a  stranger,  may  do  it  and  have  a  like  allow- 
ance; but  it  will  only  be  made  upon  proof  showing  the  necessity  of 
the  expenditure,  and  for  what  it  was  made.  Expenditures  not 
required  for  necessaries  should  be  approved  by  the  court  before  they 
are  made.(o) 

If  an  administrator  or  guardian,  in  his  representative  capacity, 
make  a  contract  or  covenant  which  he  has  no  right  to  make,  and 

(m)  Davis,  Adm'r,  v.  Harkness,  1  (ri)  Mortimer  v.  The  People,  49  111. 
Gilm.  173.  473. 

(0)  Bond  v.  Lockwood,  33  111.  213. 

32 


250  ACCOUNTS.  [CH.  IX. 

By  the  guardian  and  conservator. 

which  is  not  binding  on  the  estate  or  ward,  he  is  personally  bound 
to  make  it  good,  (p)* 

A  guardian,  who  converts  money  of  his  ward  to  his  own  use,  is 
chargeable  with  compound  interest. (q) 

To  change  a  ward's  property  from  personal  to  real  is  not  ordinarily 
permitted,  (r) 

Where  a  guardian,  to  preserve  the  estate  unimpaired  until  the 
heirs  become  of  age,  leases  for  a  less  sum  than  could  be  obtained 
from  ordinary  yearly  rents,  first  securing  the  approval  of  the  pro- 
bate court,  and  acts  in  manifest  good  faith,  he  is  not  liable  for 
having  failed  to  secure  a  higher  rent.(s) 

A  guardian  cannot,  by  his  own  contract,  bind  the  person  or 
estate  of  his  ward,  but,  if  he  promises,  on  a  sufficient  consideration, 
to  pay  the  debt  of  his  ward,  he  is  personally  bound  by  it,  although 
he  expressly  promises  as  guardian.  He  may  indemnify  himself  out 
of  the  ward's  estate,  or  if  discharged,  may  have  an  action  against 
the  ward  for  money  paid  to  his  use.(^) 

GUARDIAN'S  BOND.  If  the  guardian  fail  to  account,  his  sureties 
are  liable. (u) 


(p)  Mason  v.  CaldweU,  5  Gilm.  196.  (*)  McElheny  v.  Mmick,  63  111.  328. 
(q)  Rowan  v.  Kirkpatrick,  14  111.  2.  rt)  Sperry  v.  Fanning,  80  111.  371. 
(r)  Altridge  v.  Billing,  57  111.  480.  (u)  Wann  v.  The  People,  67  111.  202. 


CH.  X.]  DESCENT.  251 

Estates  of  intestates  to  be  distributed. 


CHAPTER  X. 

DESCENT. 

1.  Estates  both  real  and  personal  of  intestates,  after  paying  all  just  debts  and 

claims,  descend  and  are  to  be  distributed : 

(1)  To  the  children  and  their  descendants,  in  equal  parts ;  descendants 

of  a  deceased  child  taking  the  share  of  their  parents  in  equal  parts 
among  them. 

(2)  If  there  be  no  children,  nor  descendant  of  children,  and  no  widow  or 

surviving  husband,  then  to  the  parents,  brothers  and  sisters  of 
the  deceased,  and  their  descendants,  in  equal  parts,  each  parent 
taking  a  child's  part,  or  to  surviving  parent,  if  one  only  be  living, 
a  double  portion ;  and  if  no  parent  be  living,  then  to  the  brothers 
and  sisters  of  the  intestate,  and  their  descendants. 

(3)  If  there  be  a  widow  or  surviving  husband,  and  no  child  or  children, 

or  descendants  of  a  child  or  children  of  the  intestate,  then  one- 
half  of  the  real  and  the*  whole  of  the  personal  estate  shall  descend 
to  the  surviving  consort  in  fee. 

(4)  If  there  be  a  widow  or  surviving  husband,  and  a  child  or  childreiii 

or  descendants  of  a  child  or  children  of  the  intestate,  to  the  surviv- 
ing consort  one-third  of  all  the  personal  estate. 

(5)  If  there  be  no  child  or  descendant  of  such  child,  no  parent,  brother 

or  sister,  or  descendant  of  them,  and  no  surviving  consort,  then  to 
the  next  of  kin  to  the  intestate  in  equal  degree,  computing  by  the 
rules  of  the  civil  law ;  no  representation  among  collaterals  except 
with  the  descendants  of  brothers  and  sisters  of  the  intestate,  and 
no  distinction  between  kindred  of  the  whole  or  half  blood. 

(6)  If  there  be  a  surviving  consort  and  no  kindred,  then  the  estate- 

descends  to  the  survivor. 

(7)  If  there  be  no  surviving  consort  or  kindred,  then  the  estate  escheats 

to  the  State. 

2.  Illegitimate  issue  to  inherit  on  the  mother's  side  ;  rules  for  specified  cases. 

3.  Illegitimate   issue  may  be    legitimatized    by   subsequent    marriage  and 

acknowledgment  by  the  father. 
4-9.  Advancements  and  rules  relating  thereto. 

10.  Posthumous  heirs  placed  on  an  equal  footing  with  the  other  heirs. 

11.  Issue  of  deceased,  devisee  or  legatee  to  inherit,  and  how. 

12.  Undevised  and  unbequeathed  real  and  personal  property  of  any  testator  to 

be  deemed  and  distributed  as  intestate  estate ;  administrator  cum  testa 
mento  annexo  preferred  in  administration. 

13.  Repealed  laws  enumerated ;  saving  clause. 

14.  Computation  of  the  civil  law  adopted. 

15.  Proof  of  heirship. 

16.  After  accruing  rent,  an  hereditament. 


252  DESCENT.  [CH.  X. 

Estates  of  intestates  to  be  distributed. 

17.  Husband  and  wife  in  no  case  next  of  kin  to  each  othjer. 

18.  If  the  intestate  die  without  issue  leaving  only  a  mother,  the  estate  goes  to 

her. 

19.  The  interest  of  a  posthumous  child  not  affected  by  a  decree  and  sale  to  satisfy 

debts  of  relatives,  e.  g.,  his  mother  and  uncle. 

20.  A  posthumous  child  takes  directly  from  the  parent. 

21.  Distribution  of  personal  estate  not  known  to  the  common  law  except  under 

the  rules  of  the  civil  law. 

22.  Common-law  rules  as  to  the  descent  of  real  property,  discussed  in  the  light 

of  the  authorities. 

23.  The  word  heir  taken  in  a  double  sense:  1.  Designating  the  person  to  take 

the  estate ;  2.  Limiting  the  estate  transmitted  or  conveyed ;  title  by  de- 
scent or  purchase. 

24.  The  custom  of  gavel-kind. 

25.  The  rule  in  Shelley's  case. 

26.  Common-law  rules  prevail  unless  the  provisions  of  an  act  of  the  assembly 

embrace  the  very  case  in  controversy. 

27.  Heir  at  common  law  and  statutory  heir. 

28.  Distribution. 

29.  Proof  of  heirship  before  distribution. 

30.  Decisions  in  Illinois  collated. 

1.  ESTATES,  BOTH  KEAL  AND  PERSONAL,  or  RESIDENT  AND  NON- 
RESIDENT PROPRIETORS  in  this  State  dying  intestate,  or  whose  estates 
or  any  part  thereof  shall  be  deemed  and  taken  as  intestate  estate, 
after  all  just  debts  and  claims  against  such  estate  are  fully  paid, 
shall  descend  to  and  be  distributed  in  manner  following,  to  wit : 

(1)  RULES  OF  DESCENT  THEREOF. (a)  To  his  or  her  children  and 
their  descendants,  in .  equal  parts  ;  the  descendants  of  the  deceased 

(a)  An  act  in  regard  to  the  descent  universally  abolished  in  this  country, 

of  property,  April  9,  1872.*  DESCENT  So  with  few  exceptions  has  been  the 

hereditary  succession.  Title  by  descent  distinctions  between  male  and  female 

is  the  title  by  which  one  person,  upon  heirs.     2.  The  rules  of  descent  at  com- 

the  death  of  another,  acquires  the  real  mon  law  are  applicable  only  to  real 

estate  of  the  latter  as  his  heir  at  law.  estates  of  inheritance.     Estates  for  the 

2  Blackstone's  Com.  201 ;  Comyn's  Dig.  life  of  the  deceased,  of  course,  termi- 

Descent.    (A.)    It  was  one  of  the  prin-  nate  on  his  death ;  estates  for  the  life 

ciples  of  the  feudal  system  that  on  the  of  another  are  governed   by  peculiar 

death  of  the  tenant  in   fee,  the  land  rules.      Terms  of    years,    and    other 

should  descend  and  not  ascend.  Hence,  estates  less  than  freehold,  are  regarded 

the  title  by  inheritance  is  in  all  cases  as  personal  estates,  and  on  the  death 

called    descent,   although   by   statute  of  the  owner  vest  in  his  executor  or 

law  the   title   is   sometimes   made  to  administrator.     Gilb's  Dev.  156 ;  Fitzg. 

ascend.       The    English     doctrine     of  245.  Our  statute  here  opens  by  making 

primogeniture,  by  which  by  the  com-  "  estates,  both  real  and  personal,"  on 

mon  law  the  eldest  son  and  his  issue  an  equal  footing  in  this  respect, 
take  the  whole  real  estate,  has  been 


*  See  chap.  39,  R.  S.  1874.  pp.  417-419. 


CH.   X.]  DESCENT.  253 


Estates  of  intestates  to  be  distributed. 


child  or  grandchild  taking  the  share  of  their  deceased  parents  in 
equal  parts  among  them. 

(2)  When  there  is  no  child  of  the  intestate,  nor  descendant  of 
snch  child,  and  no  widow  or  surviving  husband,  then  to  the  parents, 
brothers  and  sisters  of  the  deceased,  and  their  descendants,  in  equal 
parts  among  them,  allowing  to  each  of  the  parents,  if  living,  a  child's 
part,  or  to  the  survivor  of  them  if  one  be  dead,  a  double  portion  ; 
and  if  there  is  no  parent  living,  then  to  the  brothers  and  sisters  of 
the  intestate,  and  their  descendants. 

(3)  When  there  is  a  widow  or  surviving  husband,  and  no  child  or 
children,  or  descendants  of  a  child  or  children  of  the  intestate,  then 
(after  the  payment  of  all  just  debts)  one-half  of  the  real  estate  and 
the  whole  of  the  personal  estate  shall  descend  to  such  widow  or  sur- 
viving husband  as  an  absolute  estate  forever,  and  the  other  half  of 
the  real  estate  shall  descend  as  in  other  cases,  where  there  is  no 
child  or  children,  or  descendants  of  a  child  or  children. 

(4)  When  there  is  a  widow  or  a  surviving  husband,  and  also  a 
child  or  children,  or  descendants  of  such  child  or  children  of  the 
intestate,  the  widow  or  surviving  husband  shall  receive  as  his  or  her 
absolute  personal  estate,  one-third  of  all  the  personal  estate  of  the 
intestate. 

(5)  If  there  is  no  child  of  the  intestate,  or  descendant  of  such 
child,  and  no  parent,  brother  or  sister,  or  descendant  of  such  parent, 
brother  or  sister,  and  no  widow  or  surviving  husband,  then  such 
estate  shall  descend  in  equal  parts  to  the  next  of  kin  to  the  intestate, 
in  equal  degree  (computing  by  the  rules  of  the  civil  Iaw),(c7)  and 
there  shall  be  no  representation  among  collaterals,  except  with  the 
descendants  of  brothers  and  sisters  of  the  intestate  ;  and  in  no  case 
shall  there  be  any  distinction  between  the  kindred  of  the  whole  and 
the  half  blood. 

(6)  If  any  intestate  leaves  a  widow  or  surviving  husband  and  no 
kindred,  his  or  her  estate  shall  descend  to  such  widow  or  surviving 
husband. 

(7)  If  the  intestate  leaves  no  kindred,  and  no  widow  or  husband, 
his  or  her  estate  shall  escheat  to  and  vest  in  the  county  in  which 
said  real  or  personal  estate  or  the  greater  portion  thereof  is  situated. 

2.  An   illegitimate  child   shall   be  heir  of  its  mother  and  any 

(d)  Seep.  268,  infra. 


254:  DESCENT.     .  [CH.  X, 

Ulegitimate  issue  may  be  legitimatized. 

maternal  ancestor,  and  of  any  person  from  whom  its  mother  might 
have  inherited,  if  living ;  and  the  lawful  issue  of  an  illegitimate 
person  shall  represent  such  person,  and  take,  by  descent,  any  estate 
which  the  parent  would  have  taken,  if  living. 

(2)  The  estate,  real  and  personal,  of  an  illegitimate  person  shall 
descend  to  and  vest  in  the  widow  or  surviving  husband  and  children, 
as  the  estate  of  other  persons  in  like  cases. 

(3)  In  case  of  the  death  of  an  illegitimate  intestate  leaving  no 
child  or  descendant  of  a  child,  the  whole  estate,  personal  and  real, 
shall  descend  to  and  absolutely  vest    in  the  widow  or  surviving 
husband. 

(4)  When  there  is  no  widow  or  surviving  husband,  and  no  child 
or  descendants  of  a  child,  the  estate  of  such  person  shall  descend  to 
and  vest  in  the  mother  and  her  children,  and  their  descendants — 
one-half  to  the  mother,  and  the  other  half  to  be  equally  divided 
between  her  children  and  their  descendants  —  the  descendants  of  a 
child  taking  the  share  of  their  deceased  parent  or  ancestor. 

(5)  In  case  there  is  no  heir  as  above  provided,  the  estate  of  such 
person  shall  descend  to  and  vest  in  the  next  of  kin  to  the  mother  of 
such  intestate,  according  to  the  rule  of  the  civil  law. 

(6)  When  there  are  no  heirs  or  kindred,  the  estate  of  such  person 
shall  escheat  to  the  State,  and  not  otherwise. 

3.  An  illegitimate  child,  whose  parents  have  intermarried,  and 
whose  father  has  acknowledged  him  or  her  as  his  child,  shall  be 
considered  legitimate. 

4.  Any  real  or  personal  estate  given  by  an  intestate  in  his  life-time 
as  an  advancement  to  any  child  or  lineal  descendant,  shall  be  con- 
sidered as  part  of  the  intestate's  estate,  so  far  as  it  regards  the 
divisions  and  distributions  thereof  among  his  issue,  and  shall  be 
taken  by  such  child  or  other  descendant  toward  his  share  of  the 
intestate's  estate  ;  but  he  shall  not  be  required  to  refund  any  part 
thereof,  although  it  exceeds  his  share. 

5.  If  such  advancement  is  made  in  real  estate,  and  the  value 
thereof  is  expressed  in  the  conveyance  or  in  the  charge  thereof  made 
by  the  intestate,  or  in  the  written  acknowledgment  thereof  by  the 
party  receiving  it,  it  shall  be  considered  as  of  that  value  in  the 
divisions  and  distribution  of  the  estate  ;  otherwise,  it  shall  be  esti- 
mated according  to  its  value  when  given. 

6.  If  such  advancement  is  made  in  personal  estate  of  the  intestate, 


UH.  X.]  DESCENT.  255 

Issue  of  deceased  to  inherit. 

the  value  thereof  to  be  estimated  the  same  as  that  of  real  estate  ;  and 
if,  in  either  case,  it  exceeds  the  share  of  real  or  personal  estate, 
respectively,  that  would  have  come  to  the  heir  so  advanced,  he  shall 
not  refund  any  part  of  it,  but  shall  receive  so  much  less  of  the  other 
part  of  the  intestate's  estate  as  will  make  his  whole  share  equal  to 
the  shares  of  other  heirs  who  are  in  the  same  degree  with  him. 

7.  No  gift  or  grant  shall  be  deemed  to  have  been  made  in  advance- 
ment unless  so  expressed  in  writing,  or  charged  in  writing  by  the 
intestate  as  an  advancement,  or  acknowledged  in  writing  by  the  child 
or  other  descendant. 

8.  If  a  child,  or  other  descendant  so  advanced,  dies  before  the 
intestate,  leaving  issue,  the  advancement  shall  be  taken  into  considera- 
tion in  the  division  or  distribution  of  the  estate  of  the  intestate,  and 
the  amount  thereof  shall  be  allowed  accordingly  by  the  representa- 
tives of  the  heirs  so  advanced,  as  so  much  received  toward  their 
share  of  the  estate,  in  like  manner  as  if  the  advancement  had  been 
made  directly  to  them. 

9.  A  posthumous  child  of  an  intestate  shall  receive  its  just  propor- 
tion of  its  ancestor's  estate,  in  all  respects  as  if  it  had  been  born  in 
the  life-time  of  the  father. 

10.  If,  after  making  a  last  will  and  testament,  a  child  shall  be  born 
to  any  testator,  and  no  provision  be  made  in  such  will  for  such  child, 
the  will  shall  not  on  that  account  be  revoked ;  but,  unless  it  shall 
appear  by  such  will  that  it  was  the  intention  of  the  testator  to 
disinherit  such  child,  the  devises  and  legacies  by  such  will  granted 
and  given  shall  be  abated  in  equal  proportions  to  raise  a  portion  for 
such  child  equal  to  that  which  such  child  would  have  been  entitled 
to  receive  out  of  the  estate  of  such  testator  if  he  had  died  intestate, 
and  a  marriage  shall  be  deemed  a  revocation  of  a  prior  will. 

11.  Whenever  a  devisee  or  legatee  in  any  last  will  and  testament, 
being  a  child  or  grandchild  of  the  testator,  shall  die  before  such 
testator,  and  no  provision  shall  be  made  for  such  contingency,  the 
issue,  if  any  there  be,  of  such  devisee  or  legatee  shall  take  the  estate 
devised  or  bequeathed  as  the  devisee  or  legatee  would  have  done  had 
he  survived  the  testator,  and  if  there  be  no  such  issue  at  the  time 
of  the  death  of  such  testator,  the  estate  disposed  of  by  such  devise 
or  legacy  shall  be  considered  and  treated  in  all  respects  as  intestate 
estate. 

12.  All  such  estate,  both  real  and  personal,  as  ia  not  devised  or 


256  DESCENT.  [CH.  X. 

The  interest  of  a  posthumous  child. 

bequeathed  in  the  last  will  and  testament  of  any  person,  shall  be 
distributed  in  the  same  manner  as  the  estate  of  an  intestate  ;  but  in 
all  such  cases  the  executor  or  executors,  administrator  or  adminis- 
trators, with  the  will  annexed,  shall  have  the  preference  in  adminis- 
tering on  the  same. 

13.  EEPEAL.     The  following  acts  and  parts  of  acts  are  hereby  re- 
pealed, to  wit:  Sections  thirteen,  fourteen,  forty-six,  forty-seven,  fifty- 
one,  fifty-two,  fifty-three,  fifty-four  and  one  hundred  and  twenty-eight, 
of  chapter  one  hundred  and  nine  of  theEevised  Statutes  of  1845  ;  an 
act  entitled  "  An  act  to  amend  an  act  concerning  '  Wills,' "  approved 
February  11, 1847;  an  act  entitled  "An  act  entitled  'An  act  con- 
cerning the  descent  of  property  in  this  State,' "  approved  February 
12,  1853 ;  an  act  entitled  "  An  act  to  amend  an  act  concerning  the 
descent  of  real  property  in  this  State,"  approved  February  12,  1853, 
approved  February  11,  1857  ;  also  all  other  acts  inconsistent  with 
the  provisions  of  this  act :  Provided,  that  nothing  contained  in  this 
section  shall  be  so  construed  as  to  affect  any  suits  that  may  be 
pending,  or  any  rights  that  have  accrued  at  the  time  this  act  shall 
take  effect. 

14.  THE  COMPUTATION  OP  THE  CIVIL  LAW  is  adopted  in  ascertain- 
ing who  are  the  next  of  kin  to  an  intestate,  (e) 

15.  PROOF  that  certain  children  are  the  only  ones  that  survived 
their  father,  does  not  establish  their  claim  to  be  his  only  heirs,  unless 
it  is  also  shown  that  none  of  those  who  died  before  their  father  left 
children  or  husbands  or  wives.  (/) 

16.  KENT  ACCRUING  our  OF  LAND,  upon  a  lease  granted  by  the 
owner  in  fee,  and  which  does  not  become  due  till  after  the  death  of 
the  lessor,  is  a  chattel  real,  which  descends  to  the  heir  as  a  part  of  the 
inheritance,  and  does  not  go  to  the  executors,  (g) 

17.  THE  NEXT  OF  KIN  to  a  deceased  intestate  wife,  who  dies  with- 
out issue,  take  all  her  property  except  one-half  of  her  real  estate, 
which  goes  to  her  husband.     In  no  sense  are  husband  and  wife  next 
of  kin  to  one  another.(A) 

18.  Where  a  person  dies  without  children  or  father,  but  leaving  a 
mother,   and  brothers   and   sisters,  his   whole   estate   goes    to   his 
mother.(i) 

(e)  Hays  v.  Thomas,  Breese,  136 ;  see  (k)  Townsend  v.  Radcliffe,  44  111.  446. 

p.  245,  supra.  (i)  Hays  v.  Thomas,  Breese,  136.  But 

(/)  Skinner  v.  Fulton,  39  111.  484.  see  p.  245,  supra,  and  p.  255,  infra, 
(g)  Green  v.  Massie,  13  111.  363. 


CH.  X.J  DESCENT.  257 

Common-law  rules  discussed. 

19.  The  interest  of  a  posthumous    child  in  real  estate  is  not 
divested  by  a  decree  against  his  mother  and  uncle,  under  whicli  a 
sale  was  made  to  satisfy  the  debts  of  his  relatives  and  ancestors.  (_/) 

20.  A  posthumous  child  takes  directly  from  the  parent,  his  estate 
remaining  meanwhile  in  abeyance,  so  that  he  is  not  bound  by  a 
decree  had  against  the  other  heirs  before  his  birth.(&) 

21.  Until  the  enaction  of  statutory  provisions  at  a  comparatively 
late  period  in  the  English  law,  THERE  WAS  NO  MODE  OF  COMPELLING 
THE  DISTRIBUTION  OF  THE  PERSONAL  EFFECTS  of  a  decedent  among 
his  descendants  or  next  of  kin  ;  THE  WHOLE  SUBJECT  WAS  REGU- 
LATED BY  THE  CIVIL  LAW,  according  to  which  they  became  vested 
in  the  ordinary,  as  the  successor  to  an  intestate,  and  the  ordinary 
appointed  an  administrator,  who  was  his  deputy.    Where  there  was 
a  will,  the  property  vested  in  the  executor  as  completely  as  it  had 
been  in  the  testator ;(/)  he  represents  his  person,  "  and  the  estate  he 
hath  by  his  executorship  is  said  to  be  in  him,  to  the  use  of  the 
testator  and  his  right,  and  that  he  doth,  in  the  disposition  of  his 
estate,  is  said  to  be  in  the  right  and  to  the  use  of  the  testator  also."  (m) 
The  will  is  the  declaration  of  the  uses,  for  which  the  effects  are  held 
in  trust  by  the  executor,  for  the  persons  and  purposes  declared ;  the 
statute  of  distributions  is  a  direction  to  the  executor  how  to  admin- 
ister the  assets.(w)     As  trustee  the  legal  ownership  is  in  the  executor; 
the  next  of  kin  have  a  right  only  by  statute,(o)  nor  by  the  ciyil  law 
could  even  children  claim  them  by  right.     After  the  payment  of 
debts  and  legacies,  the  executor  held  the  surplus  to  his  own  use ; 
when  his  trust  was  executed,  he  was  the  legal  owner,  bound  to 
account  to  no  one. 

22.  THE  REAL  ESTATE  of  a  person  who  dies  intestate  descends  to 
and  vests,  ACCORDING  TO  THE  COURSE  OF  THE  COMMON  LAW,  in  the 
person  who,  by  the  act  of  God,  and  in  the  right  of  blood,  succeeds 
to  the  estate  of  one  who  dies  seized  of  an  inheritable  interest  in 
land.     The  course  of  descent  is  prescribed  by  definite  rules' or  canons 
of  the  law,  which  designate  the  person  who  is  nearest  and  worthiest 
of  blood  to  the  deceased  owner,  as  hares  sanguinis ;  who,  by  right 
of  inheritance,  is  heir  to  himself  and  estates  of  inheritance.     The 
person  on  whom  this  right  devolves  is  the  eldest  son  of  the  father 
who  dies  seized ;  or,  if  he  dies  without  lineal  descendants,  his  eldest 

(j)  Detrick  v.  Migatt,  19  111.  146.  (m)  Sh.  To.  400-2  ;  Went.  0.  E.  95. 

(*)  McConnel  v.  Smith,  23  111.  611.  (ri)  4  Burns'  E.  L.  58. 

(I)  Qilb's  Dev.  156  ;  Fitzg.  245.  (o)  Fitzg.  245. 
33 


258  DESCENT.  [CH.  X. 

The  word  "  heir  "  taken  in  a  double  sense. 

brother  and  their  oldest  sons,  and  their  lineal  descendants  in  per- 
petual succession ;  if  males,  to  the  oldest  son ;  if  females,  to  them 
equally  as  parceners,  (p) 

23.  THE  WORD  "  HEIR  "  is  TAKEN  IN  A  DOUBLE  SENSE,  as  relates 
to  the  person  of  the  ancestor  and  to  his  estate.  His  personal  heir  is 
the  one  who  is  nearest  in  blood  to  him,  and  descended  from  the  same 
ancestor  on  the  side  of  the  father,  as  the  worthiest  in  blood.  If  a 
male  descendant,  it  is  one  person  only  who  is  his  heir  at  common 
law  ;  he  is  also  heir  to  his  estate,  if  it  is  held  and  descends  according 
to  the  course  of  the  common  law.  But  if  the  estate  is  in  lands 
which  are  held  by  any  particular  tenure,  and  descend  according  to 
any  local  or  customary  law,  the  heir  as  to  the  land  is  the  person  to 
whom  it  descends  by  the  custom.  The  difference  is  very  forcibly  and 
perspicuously  exemplified  by  Lord  HOBART,  in  Counden  v.  Clerke : 

"  Heir  is  sometimes  taken  absolutely  or  simply,  or  according  to  or 
by  accident ;  sometimes  in  the  abstract,  standing  naked  by  itself  and 
of  itself;  and  sometimes  in  the  concrete,  clothed  with  land  or 
rent,  in  respect  of  which  he  may  be  heir,  that  is,  not  right 
heir,  as  the  word  is  here.  For  example,  the  younger  son  in 
borough  English  is  heir  and  all  the  sons  in  gavel-kind,  whereof 
the  reason  is,  because  the  custom  is,  and  so  must  be  pleaded, 
that  the  custom  of  those  lands  is,  that  they  must  descend  to  the 
younger  son  or  all  the  sons;  so  they  are  heirs  secundum  quid  of.  those 
lands  in  point  of  descent,  or  where  they  descend,  for  then  they  are 
within  the  custom  that  gives  the  inheritance.  Sum  demum  sumus 
cum  per  causas  primus.  But  now  make  the  limitation,  even  of  land 
of  that  nature,  to  heirs  not  in  point  of  descent,  and  it  will  be 
clearly  otherwise.  And,  therefore,  if  I  give  land,  in  gavel -kind,  or 
borough  English,  to  one  for  life,  the  remainder  to  the  right  heirs  of 
I.  S.,  the  true  heirs  shall  take  it,  for  that  is  out  of  the  case  of  custom, 
and  so  must  run  to  the  heir  at  common  law.  Note,  also,  that  war- 
ranties arid  estoppels  do  always  descend  upon  the  right  heirs  general, 
as  being  to  simple  heirs.  If  there  be  a  warrantor  who  hath  lands  in 
gavel-kind,  the  eldest  son  shall  be  vouched  alone,  but  the  tenant  may 
also  vouch  the  others  for  the  possession  ;  that  the  heir  general  shall 
take  such  advantage  of  such  warranty  and  none  other."(g) 

"Nay,  more  ;  if  I  convey  lands  that  I  have  on  part  of  my  mother 

(p)  L.  7,  6 ;  L.  10  a.,  18  6. ;  G.  Dev.        (q)  Hob.  31. 
156. 


C1T.  X.]  DESCEOT.  259 

The  woi'd  "  heir"  taken  in  a  double  sense. 

or  in  borough  English,  and  declare  the  use  to  me  and  my  heirs,  or 
reserve  a  rent  to  me  and  my  heirs,  it  shall  go  to  my  heirs  at  the  com- 
mon law,  for  it  is  not  within  the  custom ;  but  it  is  a  new  thing 
divided  from  the  land  itself,  and  that  is  the  reason  of  another  differ- 
ence, that  land  by  descent  falling  upon  one  shall  be  taken  from  him 
by  a  nearer  heir  born.  Not  so  of  these  purchases,  (r) 

The  same  distinction  is  taken  by  Lord  COKE,(S)  and  illustrated  by 
Lord  MANSFIELD  in  Doe  ex  dem.  Lansing  v.  Long.(t)  He  says  : 
"  Now  the  term  '  heirs '  (in  the  plural),  in  the  case  of  gavel-kind  land, 
answers  to  the  term  'heir'  (in  the  singular),  in  the  common  case  of 
lands  which  are  not  gavel-kind ;  for  the  word  '  heir '  (in  the  singular) 
would  not  serve  for  gavel-kind  lands,  it  must  be  heirs  (in  the  plural). 
Therefore,  all  the  arguments  and  reasonings  that  are  applicable  to 
the  word  *  heir '  (in  the  singular)  in  the  common  case  of  lands  not 
being  gavel-kind,  hold  with  equal  strength  and  propriety  when 
applied  to  the  plural  termination  '  heirs,'  when  the  lands  are  gavel- 
kind." 

24.  THE  CUSTOM  OF  GAVEL-KIND  was  peculiar  to  the  county  of 
Kent ;  where,  by  the  custom  and  use,  time  out  of  mind,  lands  descend 
to  all  the  sons.(w)  The  people  of  this  county  made  it  a  condition  of 
their  submission  to  the  conqueror,  that  this  custom  should  continue 
as  the  law  of  tenures  and  descent,  notwithstanding  the  establishment 
of  the  feudal  system  as  the  general  law  of  the  kingdom  ;  it  remained, 
therefore,  an  exception  to  that  law,  as  it  had  before  been  an  excep- 
tion to  the  general  rules  of  the  common  law,  unless  since  disgaveled 
by  statute.(y) 

There  is  no  branch  of  the  law  in  which  the  courts  of  England, 
and  many  of  the  States  of  the  Federal  Union,  have  been  more  anx- 
ious to  adhere  to  established  landmarks  than  in  the  meaning  given 
to  the  words  "  heir  "  and  "  heirs,"  and  none  on  which  the  security  of 
titles  so  much  depends. 

Subtle  as  the  distinctions  on  which  some  cases  turn  may  be 
thought  to  be,  they  will  be  found,  on  investigation,  to  be  founded 
in  the  strongest  reasons  of  policy  and  good  sense ;  which  have  stood 
the  test  of  time,  admired  for  their  wisdom  by  all  who  will  under- 
stand them,  and  never  departed  from  without  the  most  pernicious 

(r)  Hob.  31.  («)  Litt.,  §  210, 1, 140,  a,  b. 

(s)  L.  10  a.  (v)  Litt.,  §  210, 1,  140,6. 

(f)  2  Burr.,  1106, 10. 


260  DESCENT.  [CH.  X. 

The  word  "  heir  "  taken  in  a  double  sense. 

consequences  to  the  peace  of  society  and  the  safe  enjoyment  of 
estates. 

The  legal  meaning  of  the  word  "  heir  "  or  "  heirs  "  depends,  at  com- 
mon law,  on  the  intention  of  the  party  who  uses  them  in  a  deed  or 
will.  They  are  used  in  one  of  two  senses,  as  words  of  limitation  or 
purchase.  In  the  first  sense,  they  denote  the  quantity  of  estate  given 
to  the  person  named;  in  the  other,  the  person  designated  to  take 
the  estate;  but  they  never  operate  in  both  ways.  Where  they  oper- 
ate by  way  of  limitation,  the  whole  estate  vests  in  the  first  taker, 
and  on  his  death  intestate,  descends  to  his  heir  according  to  the 
common  law,  as  an  estate  descendible  forever  in  fee,  or  in  tail, 
according  to  the  form  of  the  gift.  In  these  cases  the  word  "  heir  "  is 
nomen  collectivum ;  not  as  a  name  of  numbers,  but  as  a  word  de- 
noting the  continuance  and  succession  of  the  estate  in  the  heir  by 
inheritance  from  ancestor  to  heir,  and  from  heir  to  heir,  (w)  Where 
they  are  used  as  words  of  limitation,  heir  or  heirs  mean  the  same 
thing.(a;)  So  is  the  term  right  " heir"  or  "heirs; "  it  means  only  one 
person,  who  is  right  heir  by  the  common  law.  So  of  the  words 
"  heir  at  law,"  "  heir  at  common  law,"  "  heir  general "  or  "  lawful 
heir; "  they  mean  the  person  who  is  heir  jure  hereditatis.  These 
words  are  prima  facie  words  of  limitation,  unless  the  words  are 
express  or  have  a  different  meaning,  by  necessary  implication,  from 
the  whole  sense  and  tenor  of  the  writing,  (y) 

The  word  "heir"  cannot  be  a  name  of  purchase  unless  the  devisoi 
parts  with  the  whole  estate  which  is  in  him,  (z)  nor  when  the  heir 
takes  that,  after  the  death  of  his  ancestor,  which  the  ancestor  could 
enjoy  while  living;  for  that  is  descent,  and  not  purchase,  (a)  A 
man  cannot  raise  a  fee  simple  to  his  own  right  heirs,  by  the  name  of 
heir,  as  a  purchase.(S)  So  of  a  devise  to  a  person  who  is  his  next 
heir,  and  his  heirs ;  it  works  by  descent,  (c)  because  he  is  simply  heir 
to  the  ancestor,  and  the  devise  does  not  break  or  alter  the  course  of 
descent,  whatever  mode  of  expression  is  adopted.  If  it  denotes  the 
person  who  is  to  take  by  the  term  "  heir  "  in  the  capacity  of  heir  to  an 
ancestor,  and  not  a  person  designated  as  the  heir  of  some  one,  as  a 

(w)  L.  145 ;  2  Dane's  Ab.  556  ;  2  R.  A.        (z)  L.  22  6  ;  2  R.  A.  253. 
253,  H.  pi. ;  1  Gil.  D.  20 ;  1  Bulst.  219.          (a)  L.  13  6,  14  a  ;  2  Dane,  557 ;  Gilb. 

(x)  L.  22  6,  denoting  the  estate ;   1  Dev.  113 ;  1  c  95,  etc. 
Bulst.  22,  '3.  (6)  Hob.  30. 

(y)  Litt.,  12  a;  2  Rawle,  33.  (c)  Hobart,  30. 


CH.  X.J  DESCENT.  261 

The  rule  in  Shelley's  case. 

term  describing  the  person  to  take,  he  takes  by  descent.  A  strong 
and  clear  illustration  of  this  rule  of  the  common  law  is  in  the  prin- 
cipal case,  Counden  v.  Cler~ke,(d)  which  was  a  devise  of  socage 
lands  "  unto  the  right  heirs  male  and  posterity  of  me  and  my  name 
forever. "  The  testator  left  a  son,  a  daughter  and  brother ;  the  son 
died  without  issue ;  the  daughter  married  and  had  issue,  two  daugh- 
ters; so  that  the  contest  was  between  the  brother  and  granddaugh- 
ters of  the  testator.  It  was  held  that  the  brother  could  not  take, 
because  he  was  not  the  heir;  and  the  granddaughters  could  not  take 
because  they  were  not  heirs  male  of  his  name. 

25.  Adverting  to  THE  RULE  IN  SHELLEY'S  CASE,*  as  to  the  meaning 
of  the  word  "  heir,"  and  the  innumerable  cases  which  have  arisen  upon 
it,  it  will  suffice  to  take  the  remarks  of  Lord  THURLOW,  as  a  sum- 
mary of  the  laws  on  this  point  :(e) 

"  I  take  that  rule  to  be,  that  where  the  heir  takes  in  the  character 
of  heir,  he  must  take  in  the  quality  of  heir ;  I  take  that  question 
always  to  have  been  as  to  the  import  of  the  word  "heir'*  in  the  pro- 
posed case.  I  never  heard  it  contended  that  the  testator  could  vary 
the  sense  of  the  law ;  whether  heirs  general,  heirs  male,  or  heirs 
female,  are  to  take  by  those  words,  they  must  take  in  that  quality ; 
therefore,  you  must  prove  that  the  second  taker  was  not  intended  to 
take  in  that  character  but  in  some  other."(/)  "  All  heirs,  taking  as 
heirs,  must  take  by  descent."(#)  The  word  "  heirs  "  must  be  intended 
as  a  description  of  the  persons  to  take  by  such  "  declaration  plain," 
as  would  overturn  the  legal  constructions,  or  it  must  be  adopted.(A) 

There  is  no  difference,  in  this  respect,  between  wills  and  deeds,  or 
other  writings,  on  questions  of  intention,  except  this  :  That  where 
the  words  relate  to  the  quality  of  the  estate,  as  whether  it  is  for  life, 

(d)  Hob.  29.  (g)  1  Bl.  Com.  219. 

(«)  3  Binney,  154.  (h)  1  id.  221,  224. 

(/)  1  Bl.  Com.  216. 

*  Shelley's  case.    The  following  is  the  rule  established  in  this  case : 

"  When  the  ancestor,  by  any  gift  or  conveyance,  taketh  an  estate  of  freehold,  and  in 
the  same  gift  or  conveyance  an  estate  is  limited,  either  mediately  or  immediately,  to 
his  heirs,  in  fee  or  in  tail,  the  heirs  are  words  of  limitation  of  the  estate,  and  not  words 
of  purchase."  1  Coke,  104. 

PURCHASE,  in  the  law  includes  every  mode  of  acquiring  property  known  to  the  law, 
except  that  by  which  an  heir  on  the  death  of  his  ancestor  becomes  substituted  in  his 
place  as  owner  by  operation  of  law.  Washb.  Real  Prop.  401. 

The  acquisition  of  property,  by  a  person,  through  a  will  or  devise,  is  one  of  the  modes 
of  title  by  purchase,  by  deed  is  another. 

The  other  mode  of  acquiring  property  is  by  descent. 


262  DESCENT.  [cn.  x 

The  rule  in  Shelley's  case. 

or  one  of  inheritance,  certain  words  are  necessary  in  a  deed  to  carry 
a  fee,  they  must  be  such  as  to  effect  their  object  by  their  legal  opera- 
tion ;  whereas,  to  have  been  designed  by  the  testator,  the  intended 
effect  being  the  legal  effect.(i)  Where  the  words  relate  to  the  per- 
son or  persons  who  are  to  take  under  the  limitation  of  the  estate,  in 
a  deed  or  will,(/)  the  rules  of  construction  are  the  same  ;  the  inten- 
tion will  be  anxiously  sought  and  faithfully  asserted.  The  rule,  as 
adopted(&)  by  all  the  judges,(Z)  is :  "  And  here,  first,  I  do  exceed- 
ingly commend  the  judges  that  are  curious  and  almost  subtle, 
astute,  to  invent  reasons  and  means  to  make  acts  according  to  the 
just  intent  of  the  parties,  and  to  avoid  wrong  and  injury  which, 
by  rigid  rules,  might  be  wrought  out  of  the  act.(??i)  The  case  of 
Moore  v.  Magrath  is  a  strong  but  authoritative  illustration  of  the  prin- 
ciple which  the  supreme  court  of  the  United  States,  in  the  case  of 
The  United  States  v.  Arredondo,  have  extracted  from  the  law  of  con- 
struction common  to  England  and  this  country  :(n)  "  The  words  of 
a  grant  are  always  construed  according  to  the  intention  of  the  parties 
as  manifested  in  the  grant,  by  its  terms,  or  by  the  reasonable  and 
necessary  implication  to  be  adduced  from  the  situation  of  the 
parties,  and  of  the  thing  granted,  its  nature  and  use."(o)  But, 
while  the  court  will  take  all  these  circumstances  into  their  con- 
sideration, it  must  be  remembered  that  it  is  to  carry  the  plainly 
declared  intention  into  effect,  which  must  be  apparent  on  the  writ- 
ten instrument ;  when  it  is  so,  courts  will  be  astute  in  effectuating  it 
from  every  source  of  information,  and  by  the  most  liberal  and  benign 
construction ;  nay,  more,  they  will  sometimes  give  a  subtle  construc- 
tion to  the  words,  in  order  to  carry  into  execution  the  manifest 
object  arid  intention  of  the  testator.  This,  however,  can  only  be 
done  when  there  is  some  writing  to  construe  ;  the  intention  must 
not  be  wholly  dehors,  it  must  appear  on  the  instrument  in  some  part 
of  it.  The  court  will  examine  the  whole  ;  the  four  corners  as  well 
as  the  body.( p)  If  it  is  expressed,  however  defectively,  the  court  will 
aid  it  by  extrinsic  circumstances,  and  be  astute  in  supplying 
defects  and  curing  all  ambiguities  which  appear.(g')  In  the  absence  of 
any  apparent  defect  or  inaccuracy  of  expression  of  any  potent  ambi- 

(f)  Sh.  To.  437,  439.  (<?)  6  Pet.  640,  and  cases  cited. 

(f)  Fearne,  89.  (p)  Sh.  To.  85  ;  2  J.  &  W.  89. 

(k)  From  Hobart,  277.  (?)  Vide  Sh.  To.  86,  et  seq. ;  Went. 

(1)  In  Willes,  333.  OS.  Ex.  271 ;  Sh.  To.  434  ;  Gil.  Dev.  21, 

(m)  6  Pet.  739.  112  ;  Fitzg.  236. 

(n)  Cowp.  9,  10,  etc. 


CH.  X.]  DESCENT. 


Heir  at  common  law  and  statutory  heir. 


guity  or  doubt,  as  to  the  legal  or  intended  meaning  of  the  words  used, 
they  must  be  left  to  their  legal  meaning  and  effect  ;  when  legal 
words  are  used,  without  superadding  words  of  intention  which  qualify 
them,  or  denote  an  intent  to  use  them  in  any  other  sense,  the  law  deems 
them  to  be  so  intended  by  the  testator  ;  to  this  rule  there  are  no  ex- 
ceptions, either  in  the  construction  of  deeds,  wills  or  other  writings.(r) 
Any  other  will  would  repeal  the  statute  of  wills,  which  requires  them 
to  be  in  writing  ;  a  will  is,  since  the  statute  34  and  35  Henry  VIII,  to 
be  taken  as  a  written  declaration  of  the  mind,  will,  or  intention  of  the 
testator,  as  to  what  should  become  of  his  estate  after  his  death. 
Before  the  statute,  it  might  be  by  parol  as  a  declaration  of  uses 
(Dy.  53,  b;  Sh.  To.  399,  415  ;  L.  Ill),  where  land  was  devisable  by 
custom  or  tenure;  but  since  then  it  must  be  by  writing.  So  is  the 
statute  law  of  Illinois.(s) 

26.  One  of  the  first  and  most  sacred  principles  of  4the  law  is,  that 
"  the  common  law  hath  no  controller  in  any  part  of  it,  but  the  high 
court  of  parliament  ;  and,  if  it  be  not  altered  or  abrogated  by  parlia- 
ment, it  remains  still  ;  particular  customs  must  be  proved.(£)     The 
same  principle  is  the  rule  in  Illinois  and  other  States,  in  all  cases  to 
which  the  common  law  had  been  applied  by  adoption  ;  and  it  remains 
now  the  law  of  descent  of  both  real  and  personal  estate,  if  the  provis- 
ions of  an  act  of  assembly  do  not,  in  their  words,  embrace  the  very 
case  in  controversy.  (u) 

27.  There  is  then,  it  seems,  an  HEIR  AT  COMMON  LAW,  distinct  from 
the  statutory  heir,  to  whom  the  real  estate  of  a  person  dying  seized  and 
intestate  shall  descend  by  the  general  course  of  the  law  in  right  of 
blood  and*  inheritance.     That  the  common  law  of  both  countries  is 
the  same,  designating  the  same  person,  by  the  same  rules  and  courses 
of  descent,  as  the  heir  to  an  ancestor  in  all  cases,  and  the  heir  to  his 
estates  of  inheritance,  unless,  in  the  particular  event  which  has 
happened,  an  act  of  assembly  has  substituted  some  other  person  or 
persons  to  take  the  place  of  the  ancestor  for  its  enjoyment.  (v) 

(r)  Sh.  To.  89,  note  ;  Gilb.  Dev.  143.  this  subject  further,  he  is  referred  to 

(«)  See  pp.  33,  44,  supra.  the  learned  opinion  of   Sir   THOMAS 

(t)  L.  115,  6.  33,  b.  58,  b.  113,  a.  b.  ;  PLUMMEK.    2  Jac.  &  Walk.  65-132.    A 

Litt.  §  169.  careful  reading  of  this  opinion   will 

(u)^  Johnson  v.  Haines,  4  Dall.64;  throw  much  light  upon  our  statutes  of 

Cresoe  v.  Laidley,  2  Binney,  279,  284.  wills,  descent  and  conveyances. 
(«)  If  the  reader  desire  to  pursue 


264  DESCENT.  [CH.  X. 

Proof  of  lieirship. 

28.  DISTEIBUTION.*     If,  on  the  final  settlement  of  the  administra- 
tor's accounts,  it  appears  he  has  satisfied  all  the  claims  allowed 
against  the  estate,  and  all  charges  and  costs  of  administration,  and 
that  there  remains  in  his  hands  a  surplus,  it  shall  be  distributed 
according  to  the  law  of  descent. 

29.  PROOF  OF  HEIBSHIP.     Proof  of  heirship  is  required  in  case  of 
an  intestate  estate  before  a  distribution  will  be  made  to  the  heirs.   This 
may  be  done  on  the  petition  of  any  one  interested  in  the  fund  to  be 
distributed,  upon  the  testimony  of  two  disinterested  witnesses  taken 
in  open  court,  reduced  to  writing  and  filed  in  the  case.    No  estate 
will  be  declared  settled  until  the  clerk's  costs  are  paid.(w) 

To  those  not  conversant  with  the  technicalities  of  law,  our  statutes 
may  appear  ambiguous  on  some  questions  that  naturally  arise  in  the 
distribution  of  property ;  for  instance,  the  third  rule  makes  no  pro- 
visions for  the  distribution  of  the  remaining  estate,  after  giving  the 
widow  one-half  of  the  real,  and  all  the  personal  estate,  including 
dower.  This  provision  must  be  explained  by  the  preceding  one, 
both  being  intended  to  apply  in  case  there  should  be  no  children  or 
descendants  of  children  of  the  intestate ;  the  third  rule  applying  when 
the  intestate  has  left  a  widow,  and  the  second  when  there  is  no  widow, 
which  distributes  the  estate  equally  among  the  parents,  brothers  and 
sisters  of  the  intestate,  in  case  there  be  no  children  or  descendants  of 
children.  Hence,  we  must  conclude,  that  after  the  widow  has  taken 
her  one-half  of  the  real,  and  all  the  personal  estate,  including  dower, 
the  residue  is  divided  equally  among  the  parents,  brothers  and  sisters. 

This  question  has  not  been  settled  by  the  supreme  court;  it  has, 
however,  frequently  come  up  in  practice  in  the  circuit  court,  and 
has  been  decided  as  suggested  above. 

The  fourth  rule  provides,  that  if  there  be  no  children,  parents, 
brothers  and  sisters,  and  no  widow,  then  the  estate  shall  descend  in 
equal  parts  to  the  next  of  kin,  in  equal  degree,  computing  by  the 
rules  of  the  civil  law,  etc.  The  only  question  here  presented  is, 
what  are  the  rules  of  the  civil  law  ?  To  explain  the  rules  of  de- 
scent of  the  civil  law  would  extend  this  book  far  beyond  its  proper 
(w)  See  Costs  and  fees,  infra. 

*  DISTRIBUTION  is,  in  practice,  the  division  by  order  of  the  court  having  jurisdic- 
tion, among  those  entitled  thereto,  of  the  residue  of  the  personal  estate  of  an  intestate 
after  payment  of  the  debts  and  charges. 

The  law  of  the  domicile  of  the  decedent  governs  in  this  distribution.  See  Hill's 
Chan.  Pr.,  Domicile. 


CII.  X.]  DESCENT.  265 

Proof  of  heirship. 

limits,  and  we  presume  that  there  are  few  estates  to  which  it  will  be 
necessary  to  apply  these  rules;  therefore,  none  but  the  general  rule 
for  determining  the  next  of  kin  will  be  given. 

We  must  first  take  into  consideration  the  distinction  between 
lineal  and  collateral  heirs.  Lineal  are  such  as  are  in  a  direct  line 
from  the  intestate,  either  ascending,  as  the  parents,  grandparents, 
etc.,  or  descending,  as  children,  grandchildren,  their  children,  and  so 
on  down  in  a  direct  line,  always  involving  the  relationship  of  parent 
and  child;  while  collateral  include  all  other  heirs,  however  remote, 
as  brother,  sister,  uncle,  aunt,  nephew,  niece,  cousin,  etc.,  they  not 
being  related  to  each  other  in  a  direct  line,  but  are  relations  merely 
because  they  have  a  common  ancestor,  by  means  of  whom  they 
determine  that  they  are  relatives. 

The  rule  for  determining  the  next  of  kin  in  the  lineal  line  is  to 
ascertain  the  number  of  degrees  or  generations  between  the  intes- 
tate and  the  heir  or  person  to  whom  the  estate  descends,  as  from  the 
intestate  to  his  son  or  father,  one  degree;  grandfather  or  grandson, 
two  degrees,  etc.;  but  the  rule  is  more  complicated  in  collateral  rela- 
tionship: First  ascertain  the  degrees  between  one  of  the  persons 
related  and  the  common  ancestor;  count,  in  like  manner,  the  degrees 
down  to  the  other,  which  number  of  degrees  or  generations  will 
(according  to  the  civil  law)  give  the  relationship  existing  between 
them ;  for  instance,  there  are  two  degrees  between  brothers,  count- 
ing one  to  the  father  or  common  ancestor  in  the  ascending  line,  and 
one  from  the  father  to  the  other  son  in  the  descending  line.  From 
this  example  the  number  of  degrees  or  generations  will  be  easily 
determined,  by  searching  out  the  common  ancestor,  and  then  ascer- 
taining the  number  of  degrees  between  him  and  the  intestate,  adding 
to  that  the  degrees  between  the  ancestor  and  heir.  But,  in  applying 
these  principles  to  this  provision  of  the  statute,  we  encounter  a 
question  which  seems  to  have  been  left  open  by  the  statute.  The 
great-grandparents,  uncle  and  aunt,  all  being  in  the  third  degree 
from  the  intestate,  shall  the  preference  be  given  to  the  great-grand- 
parents who  are  lineal  heirs,  or  shall  they  share  equally  with  the 
uncles  and  aunts  of  the  intestate  ?  The  words  of  the  statute  seem 
to  lean  toward  the  latter  conclusion,  for  it  gives  to  the  next  01  kin, 
in  equal  degree,  an  equal  share  of  the  estate,  and  perhaps  this  would 
be  the  construction  given  to  the  statute,  and,  in  the  absence  of  a 
legal  construction  to  the  contrary,  this,  no  doubt,  would  be  the 
34 


266  DESCENT.  [CH.  X. 

Proof  of  lieirship. 

proper  course  to  pursue  in  all  cases  where  the  heirs  are  in  equal 
degree,  except  in  such  cases  as  are  definitely  provided  for  in  the 
statute. 

There  may  other  questions  arise  in  distributing  the  estate,  but  we 
know  of  no  way  by  which  this  subject  can  be  explained  better  than 
by  a  practical  illustration  of  all  the  leading  principles  relating  to  the 
subject.  For  this  purpose,  we  will  suppose  that  A  died,  leaving 
property  (when  the  debts  are  paid)  of  the  value  of  $30,000.  This 
sum  is  divided  equally  between  his  two  sons,  B  and  C,  or,  if  C  has 
died,  then  one-half  ($15,000)  to  B,  to  C's  children,  D  and  E,  an 
equal  portion  each  of  C's  share  ($15,000),  which  would  be  $7,500  to 
each;  and  if  both  the  sons  (B  and  C)  of  the  intestate  have  de- 
ceased, B  leaving  three  sons,  F,  Gr  and  H,  then  B's  share  ($15,000) 
will  be  equally  divided  among  his  three  sons,  while  G's  share  would 
go  to  his  sons,  in  the  same  manner  as  in  the  other  case.  But  if  A 
leave  no  children  or  their  descendants,  then,  if  there  be  no  widow, 
the  parents,  brother  and  sister,  four  in  all,  will  each  take  one-fourth 
of  the  $30,000;  but,  if  the  widow  is  living,  besides  her  dower,  she  is 
entitled  to  one-half  of  the  real,  and  all  the  personal,  estate,  the  res- 
idue being  divided  as  in  the  other  case.  If  there  be  none  of  the 
above-mentioned  heirs,  then  we  must  proceed  according  to  the  rules 
of  the  civil  law.  The  grandparents  being  in  the  next  degree  to  the 
intestate,  the  estate  will  ascend  to  them  in  equal  shares.  Here,  it 
will  be  remembered,  that  by  our  statute  there  is  no  representation 
among  collaterals,  except  with  the  descendants  of  brothers  and  sis- 
ters of  the  intestate ;  hence,  in  default  of  these,  we  must  ascertain 
who  occupies  the  next  degree  (the  third),  which  we  find  to  be  the 
great-grandparents,  uncles  and  aunts,  who  are  to  divide  the  estate 
equally  among  them,  and  so  on,  according  to  the  rules  heretofore 
mentioned.  We  might  go  back  from  generation  to  generation,  but 
it  would  be  useless,  for  there  are  few  estates  that  will  require  the 
application  of  all  the  rules  laid  down.  We  will,  therefore,  close  this 
chapter  by  adding  the  table  usually  presented  in  kindred  works  in 
England,  with  a  brief  explanation,  concluding  this  interesting  sub- 
ject of  descent  with  a  resume  of  some  of  the  apposite  decisions  of 
the  supreme  court  of  Illinois,  decisions  which  must  ever  command 
the  admiration  and  respect  of  the  well-read  lawyer  for  their  firm 
adherence  to  the  ancient  landmarks. 


Of 


Y 


According  to  the 
C/VIL  LAV/- 


E  .  B     M.YERS, 

La-w  P-u.~blT.sh.er, 
CHICAGO,  ILL. 


OH.  X.] 


DESCENT. 


269 


Explanation  of  the  table. 


EXPLANATION  OP  THE  TABLE. 

CONSANGUINITY,  or  kindred,  is  the 
connection  or  relation  of  persons  de- 
scended from  the  same  stock,  or  com- 
mon, one  and  the  same  ancestor ;  it  is 
either  lineal  or  collateral.  Lineal  con- 
sanguinity is  the  relation  in  a  direct 
line  downward,  as  from  the  intestate 
to  his  son,  grandson,  great-grandson; 
or  in  a  direct  line  upward,  as  from  the 
intestate  to  his  father,  grandfather, 
great-grandfather,  so  that  there  are 
lineals  in  the  descending  line  and  also 
in  the  ascending  line.  Every  genera- 
tion, either  way  from  the  descent,  con- 
stitutes a  degree,  e.  g.  The  father  is 
in  the  first  degree  in  the  ascending 
line,  while  the  son  is  in  the  first  de- 
gree in  the  descending  line,  so  on, 
either  up  or  down,  as  designated  in 
the  table. 

Collateral  kindred  or  collaterals  (see 
sub.  5,  §  1,  act  April  9,  1872)  are  such 
as  lineally  spring  from  one  and  the 
same  ancestor,  who  is  the  stirps  or 
root,  the  stirpes,  trunk  or  common  stock, 
whence  these  relations  branch,  e.  g. 
I  have  two  sons  who  have  each  a  nu- 
merous progeny ;  the  issues  are  cous- 
ins, collaterally  related  to  each  other, 
because  they  are  all  descended  from 
me  as  the  common  ancestor ;  all  have 
a  portion  of  such  a  common  ancestor's 
blood  flowing  in  their  veins,  which 
gives  them  the  name  conxanguineos  or 
consanguinity. 

Affinity,  on  the  other  hand,  is  rela- 
tionship only  by  marriage.  By  the 
same  father  there  may  be  children  by 
different  mothers,  and  from  different 
fathers  there  may  be  children  by  the 
same  mother;  i.  e.,  relatives  a  parte 
pater na  and  relatives  a  parte  materna, 
both  called  relatives  of  the  half  blood, 
while  relatives  descending  from  the 
same  father  and  mother  are  termed 
relatives  of  the  whole  blood.  Our 
statute  prescribes  that,  in  no  case, 
shall  there  be  any  distinction  between 


the  kindred  of  the  whole  and  the  hall 
blood.     Sub.  5,  §  1,  act  April  9, 1872. 

The  point  was  decided  the  same  way 
in  the  absence  of  a  statutory  provis- 
ion in  the  case  of  the  Hartleys  and 
the  Harrisons  who  claimed  under  a 
will  the  one  a  parte  materna  the  other 
a  parte  paterna,  as  the  heir  at  law  of 
Matthias  Aspden.  See  Hill's  Chan 
eery  Practice,  64-68. 

Our  statute  (id.)  prohibits  represen- 
tation among  collaterals,  except  with 
the  descendants  of  brothers  and  sis- 
ters of  the  intestate. 

By  the  aid  of  this  table  now,  the 
concise  rules  of  the  statute  may  be 
applied  to  every  case  that  can  possibly 
arise,  e.  g.  First,  suppose  at  your 
death  you  are  unmarried,  and  have 
had  no  children,  and  you  leave  three 
sisters,  one  brother  and  a  niece  (the 
daughter  of  a  deceased  brother),  sur- 
viving relatives,  your  parents  being 
dead ;  or  suppose  you  leave  three 
daughters,  one  son  and  a  granddaugh- 
ter (child  of  your  deceased  child),  in 
either  case  your  estate  would  be  di- 
vided into  five  equal  parts,  to  be  dis- 
tributed, in  the  first  case,  one-fifth  to 
each  sister,  or  three-fifths  to  your  sis- 
ters, one-fifth  to  your  brother  and  one- 
fifth  to  your  niece.  Supposing  this 
niece  to  have  been  dead,  and  to  have 
left  three  children,  then  of  your  estate 
each  of  her  children  would  take  one 
third  of  one-fifth,  together  taking 
three-fifteenths,  or  the  one-fifth  that 
would  have  descended  to  their  mother 
were  she  your  survivor ;  in  the  second 
case,  one-fifth  would  descend  to  each 
child  and  one-fifth  to  the  grandchild. 
The  other  contingencies  are  quite  spe- 
cifically detailed,  and  to  trace  the  cases 
that  might  arise  would  be  but  permu- 
tations of  the  numbers  of  the  divis- 
ions and  subdivisions  of  the  statute. 
We  leave  further  detail  for  the 
learned  and  curious,  for  whom  there 
is  ample  scope  to  study  either  real  or 
imaginary  cases  of  distribution,  or 
the  application  of  the  law  of  descent. 


30.  DECISIONS. 

In  the  case  of  Deltzer  v.  Scheuster,(x)  there  was  a  deficiency  of 
personal  assets  to  pay  the  widow's  allowance.  She,  as  a  creditor, 
applied  to  the  court  for  sale  of  the  real  estate  devised  to  the  children 

(x)  37  111.  301. 


270  DESCENT.  [CH.  X. 


Decisions. 


exclusive  of  that  devised  to  herself .  The  supreme  court,  under 
Cruce  v.  Cruce,(y)  held  she  was  a  creditor,  but  that  the  fund  de- 
vised to  her  and  the  children,  that  is,  the  realty,  was  a  common 
fund,  and  that  that  part  devised  to  the  widow  should  bear  a  propor- 
tion of  the  amount  paid  to  her,  and  that  for  the  residue  the  estate 
devised  to  the  children  should  be  sold.  Equity  is  equality. 

The  presumption  of  our  law  is,  that  a  person  dying  intestate  has 
left  heirs  capable  of  succeeding  to  his  estate  ;  and  this  presumption 
is  so  violent  that  it  can  only  be  repelled  by  proof,  (z) 

Prima  facie,  the  term  "  children  "  means  lawful  children,  and 
the  statute  of  descents,  by  which  property  of  an  intestate  is  made 
to  descend  to  and  among  children  and  their  descendants,  has  refer- 
ence to  lawful  children  only.  («) 

NEXT  OF  KIN".  The  computation  of  the  civilians  is  adopted  to 
ascertain  who  are  next  of  kin  to  an  intestate,  (b) 

Personal  property  of  a  minor  vests  immediately  in  the  next  of 
kin,  no  necessity  existing  of  taking  out  letters  of  administration 
before  instituting  suit  for  the  same.(c) 

The  title  to  the  land  of  an  intestate  does  not  vest  in  his  adminis- 
trator as  a  trustee,  but  descends  directly  to  the  heirs.  They  hold 
the  title  in  their  own  right,  and  only  subject  to  the  payment  of  the 
debts  of  their  ancestor,  in  the  modes  prescribed  by  law,  and  not 
subject  to  any  other  control  of  the  admiriistrator.(^)  Only,  however, 
to  the  extent  of  the  ancestor's  estate  which  they  inherit. 

The  heir  is  owner  of  the  lands  of  an  intestate,  and  the  rents  and 
profits  derived  therefrom,  until  divested  by  an  order  of  sale  or 
decree,  for  the  purpose  of  paying  debts.(e) 

Where  real  estate  is  conveyed  to  an  attorney,  to  save  him  harmless 
as  against  his  liability  as  bail,  without  an  intention  to  sell,  an  actual 
sale  by  the  attorney  will  not  change  the  character  of  the  proceeds  ; 
but  these  will  descend  to  the  heirs,  and  not  go  to  the  adminis- 
trator^/) 

Kent,  accruing  after  death  of  a  decedent,  goes  to  the  heirs.(^) 

(y)  21  111.  46.  (t)  Smith  v.  McConneU,,  17  111.  135. 

(z)  Harvey  v.  Thornton,  14  111.  217.  (/)  Jennings  \.McConnel,  17  111.  148. 

(a)  Blacklaws  v.  Milne,  82  111.  503.  (g)  Green    v.  Mount,    13    111.    363  ; 

(6)  Hayes  v.  Thomas,  Breese,  136.  Foltz  v.  Prouse,  17  id.  487  ;  Dixon  v. 

(c)  Lynch  v.  Rotan,  39  111.  15.  Niccotts,  39  id.  372. 

(d)  WaUmdge  v.  Day,  31  111.  379. 


CH.  X.]  DESCENT.  271 

Decisions. 

Posthumous  children  take  by  descent  with  the  antecedent  children 
or  with  other  heirs.(7i) 

A  posthumous  child  will  take  directly  from  the  parent,  with  the 
same  effect  as  if  it  had  been  born  at  the  time  of  the  decease  of  the 
parent,  (i) 

A  disclaimer  by  one  or  more  of  the  heirs,  in  a  chancery  suit  brought 
by  the  heirs,  does  not  vest  the  interest  so  disclaimed  in  the  remain- 
ing heirs.(/) 

After  the  death  of  an  heir,  money,  in  which  he  was  entitled  to 
an  equitable  interest,  while  living,  was  used  in  the  purchase  of  land 
after  his  death,  field,  that  the  heir  did  not  have  an  estate  of  inherit- 
ance iu  such  purchase  that  could  pass  by  descent  to  his  heirs.(y) 

Under  the  word  "  heirs  "  are  comprehended  the  heirs  of  heirs 
ad  infinitum.  (Merrill  v.  Atkin,  59  111.  19.) 

ORDER  OF  DESCENT.  In  this  State,  where  a  man  dies  intestate, 
leaving  a  widow,  but  no  descendants,  the  widow  inherits,  as  heir  of 
the  intestate,  one-half  of  the  real  and  all  of  the  personal  estate  of 
which  her  husband  died  seized,  which  shall  remain  after  the  payment 
of  his  debts,  and  she  is  also  entitled  to  her  dower.  (&) 

In  such  case  the  property  being  all  personal  the  widow  takes  the 
whole.  (I) 

The  one-half  of  land  in  fee  allowed  the  widow  by  statute  under 
certain  circumstances,  in  lieu  of  dower,  embraces  all  classes  of  estates 
in  which  dower  is  demandable,  equitable  as  well  as  legal  estates  of 
inheritance,  limited,  however,  in  this,  that  the  husband  must  have 
died  seized.  Lands  conveyed  by  him  in  his  life-time  without  joinder 
by  the  wife  are  not  embraced  in  the  allowance. (?») 

In  such  case  she  is  entitled  to  the  specific  articles  enumerated  in 
the  statute,  but  not  to  dower  in  the  other  half  of  the  real  estate,  nor 
to  the  whole  of  the  personal  property. (n) 

See  distinction  taken  between  widow  of  testate  and  widow  of 
intestate.(ri) 

(K)  Smith  v.  McConnett,  17  111.  135  ;  (K)  Tyson  et  ux.  v.  Postlethwaite,  13 

Botsford  v.  O'Conner,  57  id.  72.  111.  728. 

(i)  Detrick  v.  Migatt,  19  111.    146  ;  (1)  Rawson  v.  Hawson,  52  111.  62. 

McGonnel  v.  Smith,  23  id.  611.  (m)  Brown    v.  Pitney,  39  111.  469  , 

(j)  Kane  County  v.  Herrington,  50  Lessley  v.  Lessley,  44  id.  527. 

111.  332.  (n)  Lessley  v.  Lessley,  44  111.  527 

McMurphy  v.  Boyles,  49  id.  110. 


272  APPEALS.  [CH.  XI. 

Guardianship,  etc. 

CHAPTER  XL 

APPEALS.  * 

1.  Appeals  when  allowed  in  the  cases  in  the  administration  of  estates. 

2.  In  guardianship. 

3.  Praying  appeal. 

4.  How  prayed. 

5.  Bond  on  appeal. 

6.  Security  for  costs  by  non-residents. 

7.  The  requisites  of  the  bond. 

8.  The  bill  of  exceptions. 

9.  In  cases  of  wills. 

1.  APPEALS  shall  be  allowed  from  all  judgments,  orders  or  decrees 
of  the  county  court  in  all  matters  arising  under  this  act,  to  the  cir- 
cuit court,  in  favor  of  any  person  who  may  consider  himself 
aggrieved  by  any  judgment,  order  or  decree  of  such  court  and  from 
the  circuit  court  to  the  supreme  court,  as  in  other  cases,  and  bonds 
with  security  to  be  fixed  by  the  county  or  circuit  court,  as  the  case 
may  be.(«) 

Appeals  and  writs  of  error  may  be  taken  and  prosecuted  from  the 
final  orders,  judgments  and  decrees  of  the  county  court  to  the 
supreme  [appellate]  court  in  proceedings,  *  *  on  the  application 
of  executors,  administrators,  guardians  and  conservators  for  the 
sale  of  real  estate.  Such  appeals  and  writs  of  error  shall,  when  not 
otherwise  provided,  be  taken  and  prosecuted  in  the  same  manner 
as  appeals  from  and  writs  of  error  to  circuit  court. (b) 

In  all  cases  when  an  executor  or  administrator  shall  take  an 
appeal  from  the  judgment,  decree  or  order  of  any  court  or  justice  of 
the  peace  to  the  county,  circuit  or  supreme  court,  or  when  he  may 
prosecute  writs  of  error  or  certiorari,  the  appeal,  certiorari  or  super- 
sedeas  bond  shall  be  conditioned  to  pay  the  judgment  or  decree,  with 
costs,  in  due  course  of  administration ;  in  all  other  respects  such 
bonds  shall  be  in  the  form  prescribed  by  law  in  other  cases,  (c) 

(a)  Cothran's  Stats..  81,  §  123  ;  R.  S.         (b)  Rev.  Stats.,  1874,  344,  §  188. 
1874,  126,  §  123.  (c)  §  124,  R.  S.  1874,  p.  126. 

*This  subject  with  the  decisions  may  be  found  fully  delineated  and  supported,  with 
the  authorities  In  our  volumes  on  common  law  and  chancery  practice.  2  Hill's 
Common  Law  ;  Hill's  Chan.  Pr. 


CH.    XI.]  APPEALS.  272 A. 

Guardianship,  etc. 

2.  APPEALS  shall  be  allowed  to  the  circuit  court  from  any  order  or 
judgment  made  or  rendered  under  this  act,  upon  the  appellant 
giving  such  bond  and  security  as  shall  be  directed  by  the  court ;  but 
no  appeal  from  an  order  removing  a  guardian  shall  in  anywise  affect 
such  order,  until  the  same  be  reversed.(d)' 

Appeals  may  be  taken  from  the  final  orders,  judgments  and 
decrees  of  the  probate  courts  to  the  circuit  courts  of  their  respective 
counties,  in  all  matters,  except  in  proceedings,  on  the  application  of 
executors,  administrators,  guardians  and  conservators,  for  the  sale 
of  real  estate,  upon  the  applicant  giving  bond  and  security  in  such 
amount  and  upon  such  condition  as  the  court  shall  approve,  and  upon 
such  appeal  the  case  should  be  tried  de  novo.  Appeals  and  writs 
of  error  may  be  taken  and  prosecuted  from  the  final  orders  and 
decrees  of  the  probate  court  to  the  supreme  [appellate]  court,  in 
proceedings  on  the  application  of  executors,  administrators,  guard- 
ians and  conservators  for  the  sale  of  real  estate.  Such  appeals 
and  writs  of  error,  when  not  otherwise  provided,  shall  be  taken  and 
prosecuted  in  the  same  manner  as  appeals  from  and  writs  of  error 
to  the  circuit  court,  (e) 

The  conflicting  statutes  above  exhibited  have  not  yet  been  sub- 
mitted to  the  supreme  court  in  such  manner  that  a  decision  has 
been  rendered.  As  to  county  courts  sitting  in  probate  by  the  68th 
section  of  the  statute  regulating  the  administration  of  estates,  it  is 
beyond  doubt,  the  appeal  will  be  taken  to  the  circuit  court,  as  from 
a  justice  of  the  peace  ;  that  is  within  twenty  days  from  that  on 
which  the  judgment  is  rendered.  This,  of  course,  excludes  the 
day  on  which  the  judgment  is  rendered,  and  the  bond  must  be 
filed  in  apt  time.  (/)  It  would  seem  that  appeals  from  the  probate 
courts  must  be  perfected  within  the  particular  term  of  court  at 
which  judgment  is  rendered.  This  was  the  result  arrived  at  both 
in  the  circuit  court  of  Cook  county  (MCALLISTER,  J.)  and  the 
appellate  court  of  the  first  district,  in  Falch  v.  Eigenmann,  Ad/n'r, 
etc.,  unreported. 

In  Fowler  v.  Perkins,  77  111.  271,  the  supreme  court  has  held  that 
the  statute  of  1874,  having  relation  to  the  perfecting  of  appeals 

(d)  An  act  in  regard  to  guardians  and        (e)  Act  April  27.  1877  ;  id.  426. 
•wards.  Cotkran's  Stats.,  774,  §  43.  (/)  Darwin  v.  Jones,  82  111.  107. 


272B  APPEALS.  [CH.  XI. 

Guardianship,  etc. 

from  final  judgments  of  the  county  courts,  in  respect  to  taxes,  is 
not  imperative,  that  such  appeals  may  still  be  carried  to  the  cir- 
cuit court.  This  ruling  would  seem  also  to  include  the  judgments 
of  such  courts  on  the  application  of  executors,  administrators, 
guardians  and  conservators,  for  the  sale  of  real  estate.  The  lan- 
guage of  the  act  is  that  they  may  be  taken  directly  to  the  appellate 
court,  so  it  does  not  repeal,  by  implication,  the  provisions  of  the 
original  act.  The  appellant  may  elect  the  tribunal  into  which  he 
will  carry  his  cause.(^) 

In  regard  to  probate  courts,  however,  a  different  rule  applies. 
As  to  them  it  would  seem,  that  the  provision  as  to  appeals  must  be 
strictly  followed,  the  act  being  specific  as  to  the  practice  in  that 
court,  and  of  a  later  date  than  any  which  have  been  referred  to  the 
appellate  tribunals. 

In  taking  appeals  to  the  circuit  court,  the  ^practice  is  the 
same  as  that  in  perfecting  appeals  to  the  supreme  court,  hence 
exceptions  must  be  taken  and  preserved  by  bill  of  exceptions  and  the 
record  perfected  as  in  trials  in  the  circuit  courts.  (Hulett  v.  Ames, 
74  111.  253.) 

Where  an  appeal  lies  to  the  circuit  court,  a  further  appeal  lies 
from  its  judgment  to  the  appellate  or  supreme  court,  as  the  case 
may  be.  ( U.  S.  Express  Co.  v.  Merrits,  72  111.  293.) 

An  appeal  may  be  taken  from  the  court  sitting  in  probate  as  to 
any  one  item  allowed  an  administrator  in  his  account.  Such 
appeal  does  not  bring  before  the  appellate  tribunal  the  whole  ac- 
count, but  the  trial,  which  is  de  novo,  will  be  confined  to  the  item 
appealed  from.  (Morgan  v.  Morgan,  83  111.  196.) 

A  judgment  of  the  circuit  court  reversing  a  judgment  rendered 
in  the  county  court  and  remanding  the  cause  is  not  a  final  judg- 
ment from  which  an  appeal  will  lie.  (Phelps  v.  Dolan,  75  111.  90; 
Wright  v.  Smith,  76  id.  216.) 

3.     THE  APPEAL  is  prayed  usually  at  the  time  of  rendering  the 

(g)  See  Ashford  v.  The  People,  82  111.  214. 


CH.  XI.]  APPEALS.  273 

In  probate. 

adverse  judgment  order  or  decree,  but  it  may  be  prayed  at  any  time 
during  the  term  at  which  the  judgment  order  or  decree  is  rendered.(d') 

4.  How  PEAYED.  To  pray  an  appeal,  it  is  only  necessary  for  the 
party  aggrieved,  or  his  counsel,  to  suggest  that  "  we  pray  an  appeal, 
if  it  please  the'  court,  from  the  (here  specify  the  judgment  order  or 
decree  appealed  from),  and  ask  your  honor  to  fix  the  bond  on 
appeal." 

The  court  will  then  fix  the  amount  of  the  bond  and  the  time  with- 
in which  the  appeal  is  to  be  perfected.  At  the  same  term,  and  within 
the  time  fixed,  take  the  bond  properly  executed  with  the  securities 
personally  before  the  judge,  or  the  court,  if  it  be  open,  and  they  will 
be  examined,  and  if  approved  the  bond  will  be  filed  and  the  appeal 
perfected.  The  transcript  from  the  record  should  be  made  and  the 
case  certified  into  the  appellate  court.(e) 

5.  BOND  ON  APPEAL. 

[As  in  form,  supra,  page  226,  to  asterisk,  then  continue  thus :] 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  said  , 

at  the  term  of  the  county  court,  in  and  for  the  county  of  ,  to  wit : 

on  day  of  ,  A.  D.  18     ,  being  one  of  the  days  of  said  term,  recov- 

ered an  allowance  against  the  estate  of  ,  deceased,  for  the  sum  of 

dollars,  which  allowance  was  ordered  by  the  court  to  be  paid,  in  due  course  of 
administration,  from  which  allowance  by  an  order  of  the  court,  the  said 
of  the  said  estate  has  taken  an  appeal  to  the  .    Now,  therefore,  if  the 

said  ,  aforesaid,  shall  prosecute  said  appeal  with  effect,  and  shall  comply 

with  whatever  judgment  or  order  may  be  rendered  by  said  appellate  court, 
upon  dismissal  or  trial  of  said  appeal,  then  the  above  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  effect. 

[SEAL.] 
[SEAL.] 
[SEAL.] 

6.  Non-resident  executors,  administrators,  guardians  and  con- 
servators or  trustees,  before  commencing  any  proceedings  in  the 
courts  in  Illinois,  are  required  to  give  security  for  costs.  (/) 

The  first  step  for  a  non-resident  is  to  file  such  security.^) 

AN  APPEAL  BOND  by  an  executor,  conditioned  to  pay  the  debt 
"  in  due  course  of  administration,"  is  good.(7i) 

WAIVEK.     All  irregularities  in  taking  appeals  from  the  county  to 

(d)  Ballance  v.  Frisby,  I  Scam.  595 ;        (/)  See  chap,  xni,  infra. 
McMillen  v.  Bethold,  40  111.  34 ;  Illinois        (g)  2  Hill's  Com.  Law,  625-637. 
Central  R.  B.  Co.  v.  Johnson,  40  id.  35.        (h)  Mason  v.  John  on,  24  111.  159. 

(e)  See  2  Hill's  Common  ~L&\v,Appeal ; 
Hill's  Chan.  Pr.,  Appeal. 

35 


274:  APPEALS.  [CH.  XI. 

Guardianship,  Wills,  etc. 

the  circuit  court  are  waived  by  the  appearance  of  the  appellees,  with- 
out objection.(i) 

Where  a  claim  is  filed  in  the  probate  court  and  carried  up  on 
appeal,  the  claimant,  if  he  supports  his  claim,  is  entitled  to  the 
amount  and  interest,  notwithstanding  the  judgment  exceeds  the 
amount  of  the  original  claim. 

8.  The  appellant,  from  the  probate  court  to  the  circuit  court, 
who  neglects  to  tender  A  BILL  OF  EXCEPTIONS,  as  required  by  law, 
cannot  himself  object,  in  the  supreme  court  for  the  first  time,  to 
want  of  jurisdiction  in  the  circuit  court  by  reason  of  such  neg- 
lect.^) 

Where  a  cause  is  appealed  from  the  probate  court  to  the  circuit 
court,  and  the  parties  agree  that  the  case  be  tried  there  on  its  merits, 
and  it  appears  that  the  probate  court  had  not  jurisdiction  of  the 
cause,  but  the  circuit  court  had,  the  circuit  court  may  try  the  cause 
and  render  judgment  as  if  the  cause  had  been  commenced  there, 
but  cannot  direct  the  probate  court  to  issue  execution  on  the  judg- 
ment.^) 

9.  APPEAL  IN  PROBATE  OF  WILLS,  AND  MODE  OF  TRIAL.    Appeals 
may  be  taken  from  the  order  of  the  county  court,  allowing  or  dis- 
allowing any  will  to  probate,  to  the  circuit  court  of  the  same  county, 
by  any  person  interested  in  such  will,  in  the  same  time  and  manner 
as  appeals  may  be  taken  from  justices  of  the  peace,  except  that  the 
appeal  bond  and  security  may  be  approved  by  the  clerk  of  the 
county  court :  and  the  trial  of  such  appeals  shall  be  de  novo.  (I) 

PROOF  OF  WILL  ON  APPEAL  TO  CIRCUIT  COURT.  When  the  pro- 
bate of  any  will  and  testament  shall  have  been  refused  by  any 
county  court,  and  an  appeal  shall  have  been  taken  from  the  order  or 
decision  of  such  court  refusing  to  admit  such  will  to  probate,  into 
the  circuit  court  of  the  proper  county,  as  provided  by  law,  it  shall 
be  lawful  for  the  party  seeking  probate  of  such  will  to  support  the 
same  on  hearing  in  such  circuit  court,  by  any  evidence  competent  to 
establish  a  will  in  chancery ;  and,  in  case  probate  of  such  will  shall 
be  allowed  on  such  appeal,  it  shall  be  admitted  to  probate,  liable, 
however,  to  be  subsequently  contested,  as  provided  in  the  case  of 
wills  admitted  to  probate  in  the  first  instance,  (m) 

(i)  Mitchell  v.  Jacobs,  17  111.  235.  See  Hill's  Com.  Law,  Appeals;  Hill's 

(j)  Welch  v.  Wallace,  3  Gilm.  490.        Chan.  Pr.,  Appeals, 
(k)  Allen  v.   Belcher,  3  Gilm.  594.        (f)  §  14,  R.  S.  1874,  p.  1104. 

(m)  §  13,  id. 


CH.   XII.J  MISCELLANEOUS   MATTERS.  275 


Insolvent  estates. 


CHAPTER  XII. 

MISCELLANEOUS   MATTERS. 

1.  The  executor  or  administrator,  or  his  security,  not  chargeable  beyond  the 

assets  of  the  testator  or  intestate. 

2.  Specific  performance  of  the  contracts  made  by  decedent  may  be  ordered. 

3.  The  books  of  account  of  the  decedent  to  be  subject  to  the  inspection  of  all 

concerned. 

4.  Estate,  if  found  insolvent  after  two  years  from  the  grant  of  administra- 

tion, to  be  so  entered. 

5.  The  executor  or  administrator  may  be  coerced  to  apply  for  an  order  to  sell 

real  estate. 

6.  County  courts  to  have  power  to  enforce  due  observance  of  their  process, 

judgments,  orders  and  decrees,  the  same  as  the  circuit  courts. 

7.  The  sheriff  to  serve  and  execute  all  process,  papers,  etc. 

8.  Executors  and  administrators  to  receive  compensation  not  to  exceed  six 

per  centum  on  amount  of  personal  estate,  nor  more  than  three  per 
centum  on  amount  of  proceeds  of  the  real  estate  sold,  with  allowances 
for  costs  and  charges  in  collecting  the  estate  and  defending  claims. 

9.  Construction  of   the  act  relating  to  administration  to  be  liberal,  and  to 

apply  equally  to  executors  and  administrators,  etc. 
10.  Repeal  of  former  laws  with  saving  clause. 

1.  MISCELLANEOUS  PROVISIONS.    No  executor  or  administrator, 
or  his  security,  shall  be  chargeable  beyond  the  assets  of  the  testator 
or  intestate  by  reason  of  any  omission  or  mistake  in  pleading,  or  by 
false  pleading  of  such  executor  or  administrator.(a) 

2.  All  contracts  made  by  the  decedent  may  be  performed  by  the 
executor  or  administrator  when  so  directed  by  the  county  court.(J) 

3.  The  books  of  account  of  any  deceased  person  shall  be  sub- 
ject to  the  inspection  of  all  persons  interested  therein.(c) 

4.  If,  after  the  expiration  of  two  years  from  the  time  adminis- 
tration is  granted  on  an  estate,  such  estate  is  found  to  be  insolvent, 
it  shall  be  so  entered  of  record  by  the  county  court,  and  such  order 
made.    No  action  shall  be  maintained  against  the  executor  or  ad- 
ministrator of  such  estate  except  at  the  costs  of  the  party  suing ; 
but  persons  entitled  thereto  shall  receive  their  proportions  of  such 
estate  as  herein  provided.(c?) 

5.  Whenever  real  estate  is  required  to  be  sold  for  the  payment  of 

(a)  §  125,  R.  S.  1874,  p.  127.  (c)  §  127,  R.  S.  1874,  p.  127. 

(6)  §  126,  id.  (d)  %  128,  id. 


276  MISCELLANEOUS   MATTERS.  [CH.  Xil. 

Compensation,  etc. 

debts,  the  court'  may  make  all  necessary  orders  to  coerce  the  execu- 
tor or  administrator  to  make  immediate  application  for  an  order  to 
sell  such  real  estate,  (e) 

6.  County  courts  shall   have  power  to  eftforce  due  observance 
of  all  orders,  decisions,  judgments  and  decrees  made  by  them  in 
discharge  of  their  duties  under  this  act ;  and  they  may  issue  attach- 
ments for  contempt  offered  such  courts  or  its  process  by  any  execu- 
tor, administrator,   witness   or  other  person;   and  may  fine   and 
imprison,  or  either,  all  such  offenders,  in  like  manner  as  the  circuit 
courts  may  do  in  similar  cases.(/) 

7.  The  sheriff  shall,  when  required  by  the  court,  attend  all  ses- 
sions of  said  court,  either  by  himself  or  deputy,  and  shall  preserve 
good  order  in  the  court  and  execute  all  writs  of  attachment,  sum- 
monses, subpoenas,  citations,  notices  and  other  processes  which  may, 
at  any  time,  be  legally  issued  by  such  court,  and  make  return 
thereof.    And  such  sheriff  shall  be  entitled  to  the  same  fees  as  he  is 
allowed  for  similar  services  in  the  circuit  court.  (</) 

8.  Executors  and  administrators  shall  be  allowed,  as  compen- 
sation for  their  services,  a  sum  not  exceeding  six  per  centum  on 
the  amount  of  personal  estate,  and  not  exceeding  three  per  centum 
on  the  money  arising  from  the  sale  of  real  estate,  with  such  addi- 
tional allowances  for  costs  and  charges  in  collecting  and  defending 
the  claims  of  the  estate,  and  disposing  of  the  same  as  shall  be  rea- 
sonable.^) 

9.  All  the  provisions  in  this  act  relative  to  an  executor  or  admin- 
istrator shall  apply  and  extend  to  an  executrix  or  administratrix,  or 
executors  or  administrators,  and  vice  versa,  unless  otherwise  expressly 
provided  for ;  and  whenever  the  singular  number  of  the  masculine 
gender  is  mentioned,  the  provisions  shall  apply  to  two  or  more,  and 
to  the  feminine  gender,  as  the  case  may  require ;  and  this  act  shall 
be  liberally  construed  so  that  its  true  intent  and  meaning  may  be 
fully  carried  out.(i') 

10.  REPEAL  OF  FORMER  LAWS.  The  following  acts  and  parts  of  acta 
are  hereby  repealed :  Chapter  109  of  the  Eevised  Statutes  of  1845, 
entitled  "Wills,"  except  sections  one,  two,  three,  four,  five,  six, 
seven,  eight,  nine,  ten,  eleven,  twelve,  thirteen,  fourteen,  fifteen,  six- 
teen, seventeen,  eighteen,  forty-six,  forty-seven,  fifty-one,  fifty-two, 

(e)  %  129,  R.  S.  1874,  p.  127.  (h)  §  132,  R.  S,  1874,  p.  127. 

(./)  §  130,  id.  (i)  |  133,  id. 

(g)  %  131,  id. 


CH.  XII.]  MISCELLANEOUS   MATTEBS.  277 

Repeal  of  former  laws. 

fifty- three,  fifty-four  and  one  hundred  and  twenty-eight;  an  act 
entitled  "An  act  authorizing  administrators  and  executors  from 
other  States  to  prosecute  suits  in  this  State,"  approved  March  3, 
1845  ;  an  act  entitled  "An  act  to  amend  an  act  relative  to  wills  and 
testaments,  executors  and  administrators,  and  the  settlement  of 
estates,"  approved  February  21,  1845 ;  an  act  entitled  "  An  act  fur- 
ther to  define  the  duties  of  probate  justices,"  approved  February  19, 
1847 ;  an  act  entitled  "  An  act  to  amend  an  act  concerning  wills," 
approved  February  11,  1847;  an  act  entitled  "An  act  authorizing 
the  resignation  of  certain  officers,"  approved  February  10,  1849 ;  an 
act  entitled  "  An  act  to  amend  the  laws  in  relation  to  the  settlement 
of  estates,"  approved  February  17,  1851;  an  act  entitled  "An  act 
respecting  executors,  administrators,  guardians  and  their  securities," 
approved  February  12,  1853 ;  an  act  entitled  "  An  act  to  regulate 
appeals  in  certain  cases,"  approved  February  8,  1853 ;  an  act  entitled 
''  An  act  conferring  additional  power  upon  administrators  de  bonis 
non,  and  for  other  purposes,"  approved  February  14,  1855 ;  an  act 
entitled  "  An  act  to  provide  for  the  manner  of  selling  real  estate  of 
deceased  persons  for  the  payment  of  debts,"  approved  February  18, 
1857;  sections  nine,  ten  and  twelve  of  an  act  entitled  "An  act  to 
reform  the  probate  system,"  approved  February  21,  1859 ;  an  act 
entitled  "  An  act  amending  section  four  of  the  act  entitled  '  Wills,' " 
approved  February  24,  1859 ;  an-  act  entitled  "  An  act  to  amend 
chapter  one  hundred  and  ten,  Revised  Statutes,  entitled  '  Wills,' " 
approved  March  7,  1867 ;  an  act  entitled  "  An  act  to  amend  section 
one  hundred  and  thirty-four  of  chapter  one  hundred  and  nine  of  the 
Revised  Statutes  of  1845,"  approved  April  8,  1869 ;  an  act  entitled 
"An  act  to  facilitate  the  settlement  of  partnership  interest  of 
deceased  persons'  estates,"  approved  March  26,  1869 ;  an  act  entitled 
"  An  act  to  amend  chapter  one  hundred  and  nine  of  the  Revised 
Statutes,  entitled  'Wills,'"  approved  March  31,  1869;  and  all  other 
acts  and  parts  of  acts  inconsistent  with  the  provisions  of  this  act : 
Provided,  that  this  section  shall  not  affect  any  suits  that  may  be 
pending,  or  any  rights  that  have  accrued  when  this  act  shall  take 
affect"  (/) 

(f)  %  135,  act  April  1, 1372. 


278  MISCELLANEOUS   MATTERS.  [CH.  Xli 

Miscellaneous  provisions  of  the  act  of  April  1, 1872. 

MISCELLANEOUS  PROVISIONS  OF  THE  ACT  OF  APRIL  1,  1872. 

1.  Power  of  administrator  to  collect. 

2.  When  his  appointment  shall  cease. 

3.  General  provisions  as  to  bonds  of  executors  and  administrators. 

4.  Causes  for  revocation  of  letters  testamentary  and  of  administration. 

5.  Causes  for  removal. 

6.  Surety  on  bond  may  apply  to  be  released. 

7.  New  appointment  to  be  made  if  executor  or  administrator  fail  to  give  new 

bond. 

8.  Letters  cum  testamento  annexe. 

9.  Co-executor  or  co-administrator  may  be  appointed. 

10.  Liability  of  administrator,  who  has  been  discharged,  to  his  successor  in 
trust. 

1.  POWER  OF  ADMINISTRATOR  TO  COLLECT.    Every  collector  so 
appointed  shall  have  the  power  to  collect  the  goods,  chattels  and 
debts  of  the  said  deceased,  according  to  the  tenor  of  the  said  letters, 
and  to  secure  the  same  at  such  reasonable  and  necessary  expense  as 
shall  be  allowed  by  the  court;  and  the  said  court  may  authorize 
him,  immediately  after  the  inventory  and  appraisement  of  such 
estate,  to  sell  such  as  are  perishable  or  may  depreciate  by  delay,  and 
to  account  for  the  same;  and  for  the  whole  trouble  incurred  by  such 
collector  the  court  may  allow  such  commission  on  the  amount  of 
said  personal  estate  as  shall  be  actually  collected  and  delivered  to 
the  proper  executor  or  administrator,  as  aforesaid,  as  said  court  may 
deem  just  and  reasonable.    Provided,  the  same  shall  not  exceed  six 
per  cent  on  the  amount  stated  in  such  inventory  or  bill  of  appraise- 
ment.^) 

MAY  SUE,  ETC.  Every  such  collector  may  commence  suits  for 
debts  due  to  the  decedent,  and  release  the  same  on  payment  thereof ; 
and  no  such  suit  shall  abate  by  the  revocation  of  his  letters,  but  the 
same  may  be  prosecuted  to  a  final  decision,  in  the  name  of  and  by 
the  executor  or  administrator  to  whom  letters  testamentary  or  of 
administration  may  be  granted.(Z) 

2.  On  the  granting  of  letters  testamentary  or  of  administration, 
the  power  of  any  such  collector,  so  appointed,  shall  cease,  and  it 
shall  be  his  duty  to  deliver,  on  demand,  all  property  and  money  of 
the  deceased,  which  shall  have  come  to  his  hands  or  possession 

(*)  §  15,  R.  S.  1874,  p.  107.  (0  §  16,  R.  S.  1874,  p.  107. 


CH.  XII.J  3IISCELLANEOUS    MATTERS.  279 

Miscellaneous  provisions  of  the  act  of  April  1,  1872. 

(saving  such  commission  as  may  be  allowed  by  the  court,  as  afore- 
said), to  the  person  or  persons  obtaining  such  letters ;  and,  in  case 
any  such  collector  shall  refuse  or  neglect  to  deliver  over  such  prop- 
erty or  money  to  his  successor,  when  legal  demand  is  made  therefor, 
such  person  so  neglecting  or  refusing  shall  be  liable  to  pay  twenty 
per  cent  over  and  above  the  amount  of  all  such  properly  or  money 
as  comes  to  his  hands  by  virtue  of  his  administration,  and  is  not 
paid  or  delivered  over  as  aforesaid,  and  shall  forfeit  all  claim  to  any 
commission  for  collecting  and  preserving  the  estate,  which  said 
twenty  per  cent,  together  with  all  damages  which  may  be  sustained 
by  reason  of  the  breach  of  any  bond,  which  may  at  any  time  be 
given  by  any  such  collector,  may  be  sued  for  and  recovered  by  the 
person  or  persons  to  whom  letters  testamentary  or  of  administration 
may  be  granted,  for  the  use  of  the  estate  of  such  decedeni(m) 

3.  GENERAL  PROVISIONS  IN  REGARD  TO  BONDS  OF  EXECUTORS 
AND  ADMINISTRATORS.     When  two  or  more  persons  are  appointed 
executors  or  administrators  of  the  same  estate,  the  court  may  take 
a  separate  bond,  with  sureties,  from  each,  or  a  joint  bond,  with 
sureties,  from  all.(w) 

SUITS  ON  BONDS,  ETC.  All  bonds  which  may  at  any  time  be 
given  by  any  executor  or  administrator,  either  with  or  without  the 
will  annexed,  or  de  bonis  non,  to  collect,  or  public  administrator, 
may  be  put  in  suit  and  prosecuted  against  all  or  any  one  or  more  of 
the  obligors  named  therein,  in  the  name  of  the  people  of  the  State 
of  Illinois,  for  the  use  of  any  person  who  may  have  been  injured 
by  reason  of  the  neglect  or  improper  conduct  of  any  such  executor 
or  administrator,  and  such  bond  shall  not  become  void  on  the  first 
recovery  thereon,  but  may  be  sued  upon,  from  time  to  time,  until  the 
whole  penalty  shall  be  recovered.  Provided,  that  the  person  for 
whose  use  the  same  is  prosecuted  shall  be  liable  for  all  costs  which 
may  accrue  in  the  prosecution  of  the  same,  in  case  the  plaintiffs  fail 
in  their  suit;  and  certified  copies  of  all  such  bonds,  under  the  seal 
of  the  clerk  of  the  county  court,  shall  be  received  as  evidence  tc 
authorize  such  recovery  in  any  court  of  law  or  equity  of  competent 
jurisdiction.(o) 

4.  REVOKING    LETTERS   AND    REQUIRING    NEW   BONDS.       County 

courts  shall  revoke  letters  of  administration  in  all  cases  where  the 

(m)  £  17,  R.  S.  1874,  p.  107.  Allen,  86  111.166;  Tucker  v.  People,  87 

(>t)  k  24,  R.  S.  1874,  p.  109.  111.  76. 

(o)    §  25,  R.  S.  1874,  p.l09;Peopkv. 


280  MISCELLANEOUS   MATTEES.  [CH.  XII. 

Miscellaneous  provisions  of  the  act  of  April  1,  1872. 

same  were  granted  to  any  person  upon  the  false  and  fraudulent  pre- 
tense of  being  a  creditor  of  the  estate  upon  which  administration 
is  granted,  or  upon  any  other  false  pretense  whatever.  ( ;;) 

FEAUD,  ETC.  When  it  appears  that  such  letters  were  fraudulently 
obtained  by  such  administrator,  the  court  revoking  the  same  shall 
give  judgment  against  the  administrator  for  all  costs  of  suit.(</) 

DISCOVEEY  OF  WILL  TO  EEVOKE.  If,  at  any  time  after  letters  of 
administration  have  been  granted,  a  will  of  the  deceased  shall  be 
produced  and  probate  thereof  granted  according  to  law,  such  letters 
of  administration  shall  be  revoked,  (r) 

REVOCATION  or  LETTEES  TESTAMENTAEY,  ETC.  In  all  cases  where 
a  will,  testament  or  codicil  shall  have  been  proved  and  letters  granted 
thereon,  as  aforesaid,  and  such  will  shall  thereafter  be  set  aside  by 
due  course  of  law,  the  letters  granted  thereon  shall  be  revoked.(s) 

INCAPACITY  or  EXECUTOE  OE  ADMINISTEATOE;  CAUSE  FOE  EEVO- 
CATION.  The  county  court  may  revoke  all  letters  testamentary,  or 
of  administration,  granted  to  persons  who  become  insane,  lunatic  or 
of  unsound  mind,  habitual  drunkards,  are  convicted  of  infamous 
crime,  waste  or  mismanage  the  estate,  or  who  conduct  themselves  in 
such  manner  as  to  endanger  their  co-executors,  co-administrators  or 
securities,  in  all  which  cases  the  court  shall  summon  the  person 
charged  to  be  in  default  or  disqualified,  as  aforesaid,  to  show  cause 
why  such  revocation  should  not  be  made.  "When  revocation  is  made, 
the  reason  therefor  shall  be  stated  at  large  upon  the  record,  (t) 

5.  EEMOVAL  OF  EXECUTOE  OE  ADMINISTEATOE,  CAUSE  FOE,  ETC. 
When  it  shall  come  to  the  knowledge  of  the  county  court,  by  affi- 
davit or  otherwise,  that  any  executor  or  administrator  of  an  estate 
is  about  to  remove  or  has  removed  beyond  the  limits  of  this  State. 
it  shall  be  the  duty  of  such  court  to  cause  a  notice  to  be  published 
in  some  newspaper  in  the  county  where  letters  testamentary  or  of 
administration  were  granted,  for  four  weeks  successively;  and  if  no 
newspaper  is  published  in  said  county,  then  by  posting  up  a  notice 
at  the  court-house  door,  notifying  the  said  executor  or  administrator 
to  appear  before  him  within  thirty  days  after  the  date  of  such 
notice,  and  make  a  settlement  of  his  accounts  as  required  by  law.  If 
the  executor  or  administrator  neglects  or  refuses  to  make  such  set  • 

(p)  §  26,  R.  S.  1874,  p.  109.  (*)  §  29,  id. ;  see  p.  99,  supra, 

(q)  S  27,  id.  (t)  §  30,  id. 

(r)  §28,  id. 


CH.  XII.]  MISCELLANEOUS   MATTERS.  281 

Miscellaneous  provisions  of  the  act  of  April  1, 1872. 

tlement,  it  shall  be  the  duty  of  said  county  court  to  remove  him 
from  office.(w) 

ADDITIONAL  SECURITY  REQUIRED  ;  HOW  AND  WHEN.  When  any 
court  grants  letters  testamentary  or  of  administration,  of  the  estate 
of  any  person  deceased,  without  taking  good  security  as  aforesaid, 
or  when  any  security  heretofore  or  hereafter  taken  becomes  insuffi- 
cient, the  court  may,  on  the  application  of  any  person  entitled  to 
distribution,  or  otherwise  interested  in  such  estate,  require  such  exec- 
utor or  administrator  to  give  other  and  sufficient  security ;  and  in 
default  thereof  the  letters  testamentary  or  of  administration  shall 
be  revoked,  and  administration  de  bonis  non  granted;  but  all  acts 
done  according  to  law  by  the  executor  or  administrator  so  removed 
prior  to  such  revocation  shall  be  valid.(v) 

SURETY,  HOW  RELIEVED.  When  a  surety  for  an  executor  or  an 
administrator,  or  his  representatives,  may  conceive  himself  or  them- 
selves in  danger  of  suffering  by  the  mismanagement  of  such  execu- 
tor or  administrator,  and  shall  petition  the  county  court  for  relief, 
in  writing,  setting  forth  the  cause  of  such  apprehension,  the  said 
court  shall  examine  such  petition,  and,  if  the  court  shall  deem  the 
cause  therein  set  forth  sufficient  to  entitle  such  petitioner  or  peti- 
tioners to  relief,  if  true,  he  shall  summon  such  executor  or  adminis- 
trator to  show  cause  against  such  petition;  and  may  dismiss  the 
same,  or  direct  such  executor  or  administrator  either  to  give  good 
counter  security  to  save  such  petitioner  or  petitioners  harmless,  or  to 
give  a  new  bond  in  the  like  penalty  as  the  first ;  and,  upon  refusal  or 
neglect  to  give  such  counter  security  or  new  bond,  the  letters 
granted  to  such  executor  or  administrator  may  be  revoked.(w) 

6.  SURETY  MAY  PETITION.  Whenever  any  surety  on  the  bond* 
of  any  executor  or  administrator  desires  to  be  released  from  further 
liability  upon  any  such  bond,  he  may  petition  the  court  in  which 
said  bond  is  filed  for  that  purpose,  and  upon  notice  being  given  to 
the  executors  or  administrators,  as  the  court  may  direct,  the  court 
shall  compel  such  executor  or  administrator,  within  a  reasonable 
time,  to  be  fixed  by  the  court,  to  settle  and  adjust  his  accounts,  and 
pay  over  whatever  balance  may  be  found  in  his  hands,  and  file  in 
such  court  a  new  bond  in  such  penalty,  and  security,  as  may  be  ap- 

(M)  §  81,  R.  S.  1874,  p.  110.  (to)  %  33,  id. 

(«)  §  32,  id. 

*  The  bond  relates  back  to  the  grant  of  administration.    §  34,  R.  S.  1874,  p.  110. 

36 


282  MISCELLANEOUS  3i ATT;:;;.-.  [en.  xn. 

Miscellaneous  provisions  of  the  act  of  April  1,  1872. 

proved  by  the  court,  which  being  done,  the  surety  may  be  discharged 
from  all  liability  on  such  bond.(z) 

7.-  NEW  APPOINTMENT,  REVOCATION,  ETC.  If  such  executor  or 
administrator  shall  fail  to  comply  with  such  order  within  the  time 
fixed  by  the  court,  the  court  shall  order  that  such  executor  or  ad- 
ministrator be  removed  from  his  office,  and  shall  appoint  some  other 
fit  person  as  administrator,  with  the  will  annexed,  or  de  bonis  non, 
who  shall  give  bond  as  required  by  law.  And  in  case  of  the  failure 
of  the  former  executor  or  administrator  to  settle  his  accounts  and 
to  pay  over  to  the  person  so  appointed  all  moneys,  effects  or  choses 
in  action  in  his  hands  by  reason  of  his  said  office,  then  such  suc- 
cessor shall  proceed  to  collect  the  same  by  suit  against  such  execu- 
tor or  administrator,  or  by  suit  upon  his  bond ;  and  upon  collection 
thereof  such  surety  shall  be  discharged,  (y) 

8.  LETTERS  CUM  TESTAMENTO  ANNEXO.    When  the  sole  or  sur- 
viving executor  or  administrator  dies  without  having  fully  adminis- 
tered the  estate,  if  there  is  personal  property  not  administered,  or 
are  debts  due  from  the  estate,  or  is  any  thing  remaining  to  be  per- 
formed in  the  execution  of  the  will,  the  county  court  shall  grant 
letters  of  administration,  with  the  will  annexed,  or  otherwise,  as  the 
case  may  require,  to  some  suitable  person,  to  administer  the  estate 
of  the  deceased  not  already  administered.     Provided,  that  when 
there  is  still  a  surviving  executor  or  administrator,  he  may  proceed 
to  administer  the  estate,  unless  otherwise  provided,  (z) 

9.  CO-EXECUTORS  OR  CO-ADMINISTRATORS  MAY  BE  APPOINTED. 
Where  the  letters  of  one  of  several  executors  or  administrators  are 
revoked,  or  one  or  more  of  the  executors  or  administrators  die  or 
become  disqualified,  the  court  may  join  others  in  their  place,  and 
require  additional  bonds  from  the  new  administrator  or  administra- 
tors, or  the  survivor  or  survivors,  or  such  as  shall  not  have  their 
powers  revoked,  shall  proceed  to  manage  the  estate.     When  the  let- 
ters of  all  of  them  are  revoked,  or  all  of  such  executors  or  adminis- 
trators die  before  final  settlement  and  distribution  of  the  estate. 
administration,  with  the  will  annexed,  or  de  bonis  non,  shall  be 
granted  to  the  persons  next  entitled  there  to.  (a) 

10.  In  all  cases  where  any  such  executor  or  administrator  shall 
have  his  letters  revoked,  he  shall  be  liable  on  his  bond  to  such  sub- 

(x)  %  35,  R.  S.  1874,  p.  110.  (z)  §  37,  id. 

(y)  §  36,  R.  S.  1874,  p.  111.  (a)  §  38,  id. 


CH.  XII.]  MISCELLANEOUS   MATTERS.  283 


Miscellaneous  statutes. 


sequent  administrator,  or  to  any  other  person  aggrieved,  for  any 
mismanagement  of  the  estate  committed  to  his  care;  and  the  subse- 
quent administrator  may  have  and  maintain  actions  against  such 
former  executor  or  administrator  for  all  such  goods,  chattels,  debts 
and  credits  as  shall  have  come  to  his  possession,  and  which  are  with- 
held or  have  been  wasted,  embezzled  or  misapplied,  and  no  satisfac- 
tion made  for  the  same.(J) 


MISCELLANEOUS   STATUTES. 

1.  Specific  performance  of  contract  in  case  of  vendor's  death,  etc.,  how  enforced. 

2.  Executor  or  administrator  may,  of  record,  discharge  a  mortgage  or  trust 

deed. 

3.  Deposit  of  funds  on  final  settlement  belonging  to  unknown  heirs  or  claim- 

ants and  non-residents. 

4.  Foreclosure  or  sci.fa.  necessary  in  case  of  death  of  mortgagee  or  debtor 

requisite. 

5.  When  surety  is  released  in  case  of  death  of  the  maker  of  a  joint  note. 

6.  Foreign  guardian  may  receive  the  estate  of  his  ward ;  procedure  prescribed. 

7.  Competency  of  parties  as  witnesses. 

8.  The  law  of  evidence  in  probate  unchanged.    . 

9.  Miscellaneous  decisions. 

10.  Proclamations  by  the  sheriff  in  opening  and  closing,  and  at  adjournment. 

11.  Oaths,  witnesses,  jurors,  etc. 

1.    SPECIFIC  PERFORMANCE    OF  CONTRACTS   IN   CASE  OF  VENDOR'S 

DEATH,  ETC.  By  section  31  of  Ke vised  Statutes,  1845,  chapter  24, 
"  Conveyances,"  it  was  provided,  that  when  any  person  or  persons 
have  entered  into  any  contract,  bond  or  memorandum  in  writing, 
to  make  a  deed  or  title  to  land  in  this  State,  for  a  valuable  consider- 
ation, and  shall  depart  this  life,  or  have  died  heretofore  without  hav- 
ing executed  or  delivered  said  deed,  it  shall  and'  may  be  lawful  for 
any  court  having  chancery  jurisdiction  in  the  proper  circuit  in 
which  such  case  shall  arise,  to  make  decree  compelling  the  executors 
or  administrators  of  such  deceased  person  to  execute  and  deliver 
such  deed  to  the  party  having  such  equitable  right  as  aforesaid  to 
the  same,  or  his  heirs,  according  to  the  true  intent  and  meaning  of 
said  contract,  bond  or  memorandum  of  the  deceased  ;  and  all  such 
deeds  shall  be  good  and  valid  in  law.  Chapter  29,  E.  S.  1874,  p.  270. 
gives  a  more  comprehensive  law. 

(6)  §  39,  R.  S.  1874,  p.  111. 


284  MISCELLANEOUS   MATTEKS.  [CH.  XII. 


Miscellaneous  statutes. 


The  courts  are  prohibited  from  making  such  decree,  except 
upon  the  petition  in  writing  of  the  person  entitled  to  the  benefit  of 
same,  or  his  heirs,  setting  forth  the  contract,  etc.,  and  fully  describing 
the  lands  to  be  conveyed,  nor  until  the  parties  so  applying  for  such 
title  shall  have  given  reasonable  notice  of  the  time  and  place  of 
such  application  to  the  executors,  administrators  and  heirs  of  such 
decedent,  and  shall  have  fully  paid,  etc.,  the  consideration  of  such 
contract,  etc.,  according  to  the  true  intent,  tenor  and  effect  thereof. 
Where  minor  heirs  are  interested  in  such  proceeding,  reasonable 
notice  of  such  application  shall  be  given  to  the  guardian  or  guard- 
ians of  such  minors,  and  if  there  be  no  guardian,  then  the  said 
court  (of  chancery]  shall  appoint  a  guardian  or  guardians  to  litigate 
and  act  in  such  case. 

The  executors,  administrators  or  heirs  of  such  decedent,  etc., 
who  made  such  contract,  etc.,  in  his  or  her  life-time,  for  such 
conveyance,  for  a  valuable  consideration,  when  such  consideration 
has  been  paid,  etc.,  to  make  application  in  writing  (by  petition  it 
is  supposed),  to  obtain  such  decree,  upon  giving  notice  to  the  party 
to  whom  such  deed  is  intended  to  be  made,  and  under  the  same  con- 
dition as  provided  in  this  chapter  (by  the  sections  above  given  ;  see 
act  of  1873,  as  amended  in  1873). 

Section  6  of  the  new  act  provides  that,  in  all  cases  where  such  ap- 
plication shall  be  made,  the  court  shall  have  power  to  continue  the 
same  from  term  to  term,  to  obtain  such  evidence  as  the  case  requires; 
and  no  decree  for  such  conveyance,  upon  such  applications,  shall  be 
made  unless  the  said  court  (of  chancery)  shall  be  satisfied  that  decree 
can  be  made  without  injustice  to  any  heir  or  creditor  of  the  de- 
ceased, and  that  the  same  is  just  and  equitable,  and  section  7  directs 
that  a  complete  record  of  such  petition  and  proceedings  thereon  be 
made,  and  that  the  court  shall  decree  payment  of  costs  as  shall 
appear  right  and  equitable. (c)  • 

There  is  little  to  be  said  under  these  statutes,  except  —  • 

1.  That  &  petition  in  writing  must  be  presented  to  the  proper  chan- 
cery court  in  the  proper  circuit  (this  is,  of  course,  the  circuit  court, 
unless  some  local  court  have  jurisdiction  in  chancery  of  the  matter). 
The  proper  circuit  would  be  that  of  the  county  where  the  land  lies, 
unless  the  defendants,  or  the  major  part,  reside  in  another  county. 

(c)  See  Rev.  Stat.,  1845,  ch.  24,  "  Con-  163,  Chancery  Code  ;  Laws  1872,  293 ; 
veyances,"  §§  31  to  36  inclusive ;  id.  277-279  ;  Laws  1873,  70.  R.  S.  1874, 
Purple,  pp.  160, 161 ;  Scates,  pp.  162,  p.  270. 


CH.  Xll.J  MISCELLANEOUS   MATTERS.  285 

Miscellaneous  statutes. 

Ordinarily,  however,  it  is  in  the  circuit  court  of  the  county  where 
the  decedent  lived  and  died. 

2.  This  petition  must  be  in  the  ordinary  chancery  form.     It  may 
be  presented  by  the  party  interested  in  getting  the  deed,  or  it  may 
be  presented  by  the  executor,  administrator  or  heir  of  the  decedent. 

3.  The  petition  must  set  forth  the  contract,  etc.,  sought  to  be 
enforced,  must  fully  describe  the  lands,  should  name  the  executor, 
etc.,  and  heirs,  and  ought  to  allege  that  the  decree  sought  will  work 
no  injustice  to  any  heir  or  creditor  of  decedent,  and  show  that  it  is 
just  and  equitable.     This,  of  course,  will  flow  from  the  facts.     It 
should  show  that  the  consideration,  etc.,  has  been  fully  paid. 

4.  The  notice  required  by  the  statute  should  be  given  in  this 
respect ;  where  any  of  the  parties  are  non-resident,  the  usual  publi- 
cation should  be  made.     This  notice  is  not  the  usual  summons ;  it 
is  distinct,  and  should  be  given,  as  directed  by  the  statute,  by  the 
party  interested,  if  petitioner,  or  by  the  executor,  etc.,  if  petitioner. 

5.  The  court  has  power  to  appoint  a  guardian  ad  litem,  or  rather 
one  pendente  lite,'  where  there  is  a*  minor,  and  no  guardian  appointed. 
It  would  seem  that  if  the  application  be  made  by  an  heir,  and  he 
have  a  guardian,  the  proceeding  can  be  had  by  such  guardian  in  the 
name  of  the  heir,  but  in  no  other  case  can  the  guardian  institute 
such  proceedings.     He  can  unite  with  the  other  heirs. 

6.  As  to  costs,  if  the  delay  in  making  the  deed  was  by  the  neglect 
of  the  decedent,  his  estate  should  pay  the  costs ;  if  not,  then  the 
party  benefited.     But  this  is  in  the  discretion  of  the  court,  so  that 
it  be  equitable  in  view  of  the  facts. 

7.  It  would  seem  that  full  power  is  given  the  court  to  act  as  in 
other  cases,  by  way  of  continuance,  etc.(d) 

3.  A  mortgage  or  trust  deed  of  real  or  personal  property  may  be 
released  by  the  executor  or  administrator,  heir  or  assignee  of  record 
of  the  mortgagee  or  trustee,  and  such  instrument  may  be  acknowl- 
edged or  proved  in  the  same  manner  as  deeds  of  conveyance  of 
lands,  (e) 

(cT>  See  §  6,  R.  S.  1874,  p.  270.  (e)  %  9,  R.  S.  1874,  p.  712. 


286  MISCELLANEOUS   MATTERS.  [CH.  XII. 


Miscellaneous  statutes. 


4.  The  law  of  1869,  in  force  March  30,  1869,  "An  act  to  protect 
widows  and  orphans  from  sacrifice  of  their  property  by  sales  upon 
mortgages  and  trust  deeds,"  provides,  that  in  case  of  the  death  of 
the  grantor,  in  any  mortgage  or  trust  deed  given  for  the  security  of 
money,  no  sale  shall  be  made  by  virtue  of  any  power  or  sale  con- 
tained in  such  mortgage  or  trust  deed,  or  given  in  relation  thereto, 
but  the  same  may  be  foreclosed  as  a  mortgage  not  having  such  power 
may  now  be  foreclosed  at  law,  or  in  chancery  (at  law  by  scire  facias, 
in  chancery  by  bill  of  complaint). (g) 

By  act  of  May  7, 1879,  like  provision  is  made  as  to  all  real  estate 
within  this  State,  mortgaged  or  incumbered  by  trust  deed  or  other 
conveyance  in  the  matter  of  a  mortgage,  executed  after  July  1, 1879. 

5.  Whenever  the  principal  maker  of  any  note,  bond,  bill  or  other 
instrument  in  writing,  shall  die,  if  the  creditor  shall  not,  within 
two  years  after  the  granting  of  letters  testamentary  or  of  admini- 
stration, present  the  same  to  the  proper  court  for  allowance,  the 
sureties   thereon   shall  be   released  from  payment  thereof   to  the 
extent  that  the  same  might  have'been  collected  of  such  estate  if 
presented  in  proper  time,  but  this  section  shall  not  be  construed  to 
prevent  the  holder  from  proceeding  against  the  sureties  within  said 
two  years.(7i) 

6.  FOREIGN  GUARDIAN.     When  there  is  no  guardian  in  the  State 
of  a  non-resident  minor,  his  guardian,  appointed  and  qualified  ac- 
cording to  the  law  of  the  place  where  the  minor  resides,  having  first 
obtained  the  authority  of  the  county  court  of  the  county  in  this 
State  where  any  of  the  personal  estate  of  such  minor  may  be,  so  to 
do,  may  collect,  by  suit  or  otherwise,  receive  and  remove    to  such 
place   of   residence   of   the  minor,   any  personal   estate   of   such 
minor,  (i) 

When  there  is  a  guardian  in  this  State  of  a  non-resident  minor, 
the  court  may  authorize  such  guardian  to  pay  over  and  transfer  the 
whole  or  any  part  of  the  ward's  property  to  the  non-resident  guardian 
of  such  ward,  appointed  and  qualified  according  to  the  law  of  the 

(g)  §  13,  R.  S.  1874,  p.  713.  (t)  §  44,  R.  S.  1874,  p.  563  :  Cotkran's 

(h)  §§  3,  4,  R.  S.  1874,  p.  1049.  Statutes,  p.  774. 


CH.  XII.]  MISCELLANEOUS   MATTERS.  287 

Miscellaneous  statutes. 

place  where  the  ward  resides,  upon  such  terms  as  shall  be  proper  in 
the  premises,  requiring  receipts  to  be  passed;  and  when  the  whole 
estate  in  the  hands  of  the  resident  guardian  shall  be  so  transferred, 
may  discharge  him.  (j ) 

But  the  court  shall  not  grant  the  authority  mentioned  in  sec- 
tions 44  and  45,  except  upon  petitition  of  such  foreign  guardian, 
signed  by  him  and  verified  by  his  affidavit,  and  unless  he  shall 
file  with  the  court  properly  authenticated  copies  of  his  letters  of 
guardianship,  and  bond,  with  security  in  double  the  amount  of 
the  value  of  the  property  and  estate  sought,  which  shall  have  been 
executed  and  filed  in  the  court  which  appointed  such  guardian. 
And  unless  it  shall  appear  to  the  court  that  a  removal  of  such 
estate  will  not  conflict  with  the  interest  of  the  ward  or  the  terms  of 
limitation  attending  the  right  by  which  the  ward  owns  the  same,  or 
the  rights  of  creditors,  the  resident  guardian  shall  have  ten  days' 
previous  notice  of  such  application.  (&) 

7.  COMPETENCY  OF  PAETIES  AS  WITNESSES.  No  party  to  any 
civil  action,  suit  or  proceeding,  or  person  directly  interested  in  the 
event  thereof,  shall  be  allowed  to  testify  therein  of  his  own  motion, 
or  in  his  own  behalf,  by  virtue  of  the  foregoing  section,  when  any 
adverse  party  sues  or  defends  as  the  trustee  or  conservator  of  any 
idiot,  habitual  drunkard,  lunatic  or  distracted  person,  or  as  the 
executor,  administrator,  heir,  legatee  or  devisee  of  any  deceased  person, 
or  as  guardian  or  trustee  of  any  such  heir,  legatee  or  devisee,  unless 
when  called  as  a  witness  by  such  adverse  party  so  suing  or  defend- 
ing, and  also  except  in  the  following  cases,  namely:  1.  In  any 
such  action,  suit  or  proceeding,  a  party  or  interested  person  may 
testify  to  facts  occurring  after  the  death  of  such  deceased  person,  or 
after  the  ward,  heir,  legatee  or  devisee  shall  have  attained  his  or  her 
majority. 

2.  When  in  such  action,  suit  or  proceeding,  any  agent  of  any 
deceased  person  shall,  in  behalf  of  any  person  or  persons  suing  or 
being  sued,  in  either  of  the  capacities  above  named,  testify  to  any 
conversation  or  transaction  between  such  agent  and  the  opposite 
party  or  party  in  interest,  such  opposite  party  or  party  in  interest 
may  testify  concerning  the  same  conversation  or  transaction. 

3.  Where,  in  any  such  action,  suit  or  proceeding,  any  such  party 

0")  §  45,  R.  S.  1874,  p.  568.  (k)  §  46,  id. 


MISCELLANEOUS   MATTERS.  [CH.  XII. 

Miscellaneous  statutes. 

suing  or  defending  as  aforesaid,  or  any  person  having  a  direct  interest 
in  the  event  of  such  action,  suit  or  proceeding,  shall  testify  in  behalf 
of  such  party  so  suing  or  defending,  to  any  conversation  or  transac- 
tion with  the  opposite  party  or  party  in  interest,  then  such  opposite 
party  or  party  in  interest  shall  also  be  permitted  to  testify  as  to  the 
same  conversation  or  transaction. 

4.  Where,  in  any  such  action,  suit  or  proceeding,  any  witness,  not 
a  party  to  the  record,  or  not  a  party  in  interest,  or  not  an  agent  of 
such  deceased  person,  shall,  in  behalf  of  any  party  to  such  action, 
suit  or  proceeding,  testify  to  any  conversation  or  admission  by  any 
adverse  party  or  party  in  interest,  occurring  before  the  death  and  in 
the  absence  of  such  deceased  person,  such  adverse  party  or  party  in 
interest  may  also  testify  as  to  the  same  admission  or  conversation. 

5.  When  in  any  such  action,  suit  or  proceeding,  the  deposition  of 
such  deceased  person  shall  be  read  in  evidence  at  the  trial,  any 
adverse  party  or  party  in  interest  may  testify  as  to  all  matters  and 
things  testified  to  in  such  deposition  by  such  deceased  person,  and 
not  excluded  for  irrelevancy  or  incompetency.(Z) 

8.  The  act  relating  to  evidence  (R.  S.  1874,  pp.  488-496)  contains 
this  exception,  "Nothing  in  this  act  (act  of  1867,  R.  S.  1874,  p.  4'ju. 
§  8)  contained  shall  in  any  manner  affect  the  laws  relating  to  the 
settlement  of  the  estates  of  deceased  persons,  infants,  idiots,  lunatics, 
distracted  persons,  or  habitual  drunkards  having  conservators,  or  to 
the  acknowledgment  or  proof  of  deeds  and  other  conveyances 
relating  to  real  estate  to  entitle  the  same  to  be  recorded,  or  to  the 
attestation  of  the  execution  of  last  wills  and  testaments,  or  of  any 
other  instrument  required  by  law  to  be  attested,"  which  leaves  the 
law  of  evidence  in  probate  matters  where  it  stood  in  1867. (m) 

The  repealing  section  of  the  revised  act  in  relation  to  guardian 
and  ward  is  a  resume"  of  the  former  laws  on  that  subject.(w) 

(0  See  2  Hill's  C.  L.,  Evidence.  (ri)  §  51,  act  April  10, 1872.     See   p. 

(m)  Cothran's  Statutes,  §  8,  p.  665.       7,  supra;  appendix. 


OH.  XII. J  MISCELLANEOUS   MATTERS.  289 

Miscellaneous  statutes. 

9.  MISCELLANEOUS  DECISIONS.  Under  the  Kevised  Statutes,  an 
administrator  cannot,  by  his  admissions,  bind  the  estate  of  his  in- 
testate.(w) 

In  an  action  in  the  name  of  the  people  for  the  use  of  an  adminis- 
trator upon  the  official  bond  of  another  administrator,  upon  a  dis- 
missal of  the  cause,  judgment  was  entered  against  the  plaintiff  for 
costs.  This  was  erroneous,  for  if  the  people  were  plaintiffs,  no 
judgment  of  costs  could  be  given  against  them ;  if  the  administrator 
for  whose  use  the  suit  was  brought,  then  the  judgment  should  not 
have  been  against  him  personally,  but  to  be  paid  in  due  course  of 
adniinistration.(o) 

Executors  or  administrators  must  all  join,  and  cannot  sue  separ- 
ately^ p)  even  though  some  of  them  have  renounced,  (q)  But  any 
defect  of  parties  on  this  account  would  be  waived,  if  not  pleaded,  in 
abatement.^)  The  statute  also  authorizes  executors  or  adminis- 
trators to  maintain  actions  for  wrongs  committed  to  the  property, 
rights  or  interests  of  their  testator  or  intestate,  against  the  wrong- 
doer, and  after  his  death,  against  his  executors  or  administrators. 
The  provision,  however,  does  not  extend  to  actions  for  slander  and 
libel ;  assault  and  battery,  false  imprisonment,  and  actions  on  the 
case  for  injuries  to  the  person  of  the  plaintiff  and  to  the  person  of 
the  testator  or  intestate  are  included,  (r) 

The  proceedings  of  a  court  of  competent  jurisdiction  upon  a  peti- 
tion of  an  administrator  to  sell  lands  of  his  intestate  for  the  payment 
of  debts,  cannot  be  attacked  collaterally,  (s) 

The  judgment  of  a  covnty  court  against  an  administrator  is  only 
prima  facie  evidence  as  against  the  heir  of  the  existence  of  a  debt 
of  the  estate ;  but  when  the  administrator  applies  for  leave  to  sell 
real  estate  to  pay  such  judgment,  the  heir,  being  neither  a  party 
nor  a  privy  to  it,  is  not  concluded  from  contesting  such  application ; 
if  he  has  joined  in  taking  an  appeal  from  such  judgment,  he  would 
be  bound  by  the  judgment  on  the  appeal. (t) 

(n)  Marshall  v.  Adams,  11  111.  37.  (r)  2  R.  S.,  N.  Y.,  365,  §§  1,2;  see 

(o)  The  People  v.  Cloud,  50  111.  439.  Reed  v.  Railroad  Co.,  18  111.  403. 

(p)  Smith  v.  Archer,  53  111.  241 ;  §  (*)  Wimberly  v.  Hurst,  33  111.  166. 

122,  R.  S.  1874,  p.  126.  (t)  Stone  v.  Wood,  16  111.  177;   see, 

(q)  5  Wend.  313.  also,  Hopkins  v.  McCann,  19  id.  113. 

37 


290  MISCELLANEOUS   MATTERS.  [CH.  XII. 


Miscellaneous  statutes. 


In  an  action  to  set  aside  an  administrator's  sale  of  land  for  a 
defect  in  the  certificate  of  publication  of  the  notice  of  application 
for  leave  to  sell,  in  not  stating  the  first  and  last  days  of  publication, 
the  court  will  presume,  from  the  recital  in  the  decree  of  the  probate 
court,  that  due  "  notice  was  given  according  to  law,"  that  the  probate 
court  received  other  and  sufficient  evidence  of  the  dates  of  publica- 
tion.^) 

No  particular  form  is  required  in  the  proceedings  of  an  inferior 
court  to  render  its  order  a  judgment.  It  is  sufficient  if  it  be  final, 
and  the  party  may  be  injured,  (v) 

So  where  the  order  of  a  county  court  in  respect  to  a  claim  pre- 
sented against  an  estate  was,  after  having  taken  the  matter  under 
advisement,  "  the  court  this  day  after  due  deliberation  rejects  the 
claim,"  this  was  held  to  be  a  sufficiently  formal  judgment  from  which 
an  appeal  or  certiorari  would  lie.(v) 

A  person,  just  before  his  death,  delivered  his  money  to  be  paid 
over  to  his  family,  and  the  person  who  received  the  money  was  after- 
ward sued  by  the  administrator  of  the  deceased,  on  the  ground  that 
he  had  not  accounted  for  all  the  money  so  received.  Held,  that  it 
was  erroneous  in  the  court  to  instruct  the  jury  that  "it  was  not 
incumbent  on  the  defendant  to  account  for  what  the  deceased  did 
with  his  money; "  that  it  was  for  the  jury  to  determine  whether  the 
facts  and  circumstances  in  the  case  satisfied  them  that  the  deceased 
had,  at  the  time  of  his  death,  more  money  in  his  possession  than 
had  been  accounted  for  by  the  defendant,  and  whether  or  not  there 
was  sufficient  prima  facie  evidence  in  the  case  against  the  defendant, 
to  call  upon  him  to  explain  how  it  was  that  he  received  no  more 
money  from  the  deceased.(«;) 

An  executor  or  administrator  could  in  no  case  at  common  law 
bring  an  action  for  a  wrong  done,  either  to  the  person  or  property 
of  his  testator  or  intestate  in  his  life-time.  An  action  of  trespass  or 
trover  will,  however,  lie  for  an  injury  to,  or  the  conversion  of.  the 
personal  property  of  such  testator  or  intestate  in  the  name  of  his 
executor  or  administrator  as  plaintiff,  though  the  injury  was  com- 
mitted in  the  life-time  of  such  testator  or  intestate.  This  is  by  a 
particular  statute  giving  in  terms  an  action  of  trespass  only  to  an 
executor,  etc.,  in  such  case.(a;)  But  the  construction  given  to  the 

(u)  Moore  v.  Neil,  39  111.  256.  (w)  Eames  v.  Blackhart,  12  111.  195. 

(«)  Johnson  v.  OiUett,52  111.  358  ;  see        (x)  1  Ch.  PI.  67. 
Jones'  Forms,  395-402. 


CH.  XII.]  MISCELLANEOUS   MATTERS.  291 

Proclamation  —  Oaths. 

provisions  of  this  statute  has  been  very  liberal,  and  its  equity  is  now 
understood  to  reach  every  injury  to  the  personal  property  of  the 
deceased.  Trover,  replevin,  case  or  debt,  for  an  escape,  or  case  for 
removing  goods  under  execution,  without  paying  the  year's  rent, 
etc.,  are  accordingly  held  to  lie  in  the  right  of  the  deceased.(y) 

In  all  other  cases,  however,  the  action  for  a  wrong  dies  with  the 
person. 

10.  PROCLAMATION  BY  SHERIFF  OR  DEPUTY. 

OPENING  AT   THE   BEGINNING   OF  THE  TEBM. 

Hear  ye  !  Hear  ye ! !  Hear  ye  ! ! !  the  honorable  the  county  court  of  the  county 
of  ,  and  State  of  Illinois,  is  now  opened  and  in  session  in  course  for  the 

term. 

ADJOURNMENT. 

Hear  ye  !  Hear  ye ! !  Hear  ye ! ! !  the  honorable  the  county  court  of  the  county 
of  ,  and  State  of  Illinois,  is  now  adjourned,  and  will  stand  adjourned 

until  o'clock  to-morrow  morning  (or  as  the  case  may  be). 

OPENING  AFTER  ADJOURNMENT. 

Hear  ye !  Hear  ye  ! !  Hear  ye ! ! !  the  honorable  the  county  court  of  the  county 
of  ,  and  State  of  Illinois,  is  now  open  and  in  session  pursuant  to  adjourn- 

ment. 

CLOSING  AT  THE  END  OF  THE  TERM. 

Hear  ye  !  Hear  ye  ! !  the  honorable  the  county  court  of  the  county  of  , 

and  State  of  Illinois,  having  closed  its  session  in  course  for  the  present  term,  is 
now  adjourned,  and  from  henceforth  stands  adjourned  without  day. 

If  the  sheriff,  or  one  of  his  deputies,  be  present,  the  court  may  be 
opened  and  adjourned  by  proclamation,  if  not,  the  court  opens  or 
adjourns  by  order,  entered  on  the  minutes  of  the  clerk.  It  is  more 
formal  and  business  like  to  open  and  close  by  proclamation  all  the 
sessions  of  the  court  day  by  day,  both  forenoon  and  afternoon,  and 
at  the  beginning  and  close  of  the  term.  The  sheriff  or  deputy  should 
always  be  in  attendance,  keep  order  and  perform  the  duty  of  making 
proclamation  of  opening  and  closing. 

11.  OATHS. 

INTERPRETER'S  OATH. 

You  do  solemnly  swear,  by  the  ever-living  God  (or,  you  do  solemnly,  sincerely 
and  truly  declare  and  afflrm),  that  you  will  well  and  truly  interpret  and  trans- 

(y)  1  Ch.  PI.  67,  68  ;  2  Johns.  227. 


292  MISCELLANEOUS   MATTERS.  [CH.  XII. 


Oaths. 


late  the  English  language  into  (German)  and  the  (German)  into  English,  be- 
tween the  counsel,  the  witness,  the  court  and  the  jury,  relating  to  (the  proceed- 
ings now  before  this  court)  (or  the  issue  joined  between  A  B,  plaintiff,  and  C  D, 
defendant)  to  the  best  of  your  ability.  So  help  you  God. 

WITNESS'  OATH.* 

You  do  solemnly  swear,  by  the  ever-living  God,  that  the  testimony  you  shall 
give  in  the  matter  now  on  hearing  (or  the  cause  now  on  trial)  shall  be  the  truth, 
the  whole  truth  and  nothing  but  the  truth.  So  help  you  God. 

AFFIANT'S  OATH. 

Ton  do  solemnly  swear,  by  the  ever-living  God,  that  this  affidavit,  by  you 
subscribed,  is  true.  So  help  you  God. 

JURORS'  OATHS. 
Preliminary  Oath. 

You  and  each  of  you  do  solemnly  swear,  by  the  ever-living  God,  that  you 
will  true  answers  make  to  all  questions  that  shall  be  put  to  you,  either  by  court 
or  counsel,  touching  your  competency  to  sit  as  j  urors  in  this  cause.  So  help 
you  God. 

TO  TRY  THE  ISSUES. 

You  and  each  of  you  do  solemnly  swear,  by  the  ever-living  God,  that  you 
will  truly  try  the  issues  joined  in  this  cause,  now  on  hearing  before  the  court, 
wherein  A  B  is  plaintiff  and  C  D  is  defendant,  and  a  true  verdict  render  accord- 
ing to  evidence. 

TO  TRY  THE  ISSUES  AND  ASSESS  DAMAGES. 

You  and  each  of  you  do  solemnly  swear,  by  the  ever-living  God,  that  you 
will  well  and  truly  try  the  issues  joined  in  the  cause  now  on  hearing  before 
the  court,  between  A  B,  plaintiff,  and  C  D,  defendant,  and  also  well  and  truly 
assess  the  damages  of  the  said  plaintiff  against  said  defendant,  and  a  true 
verdict  and  assessment  render  according  to  evidence.  So  help  you  God. 

JURY  POLLED. 

Question  to  be  asked  of  the  jurors  severally.  Was  this,  and  is  this  now, 
your  verdict  ? 

OATH  TO  QUALIFY. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will  true  answers 
make  to  all  questions  put  to  you  touching  your  qualifications  as  security  on  the 
bond  of  A  B,  administrator  of  the  estate  of  G  D,  deceased.  So  help  you  God. 

OATH  ON  APPLICATION  OF  A  JUROR  TO  BE  EXCUSED. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you  touching  your  application  to  be 
excused  from  serving  as  a  petit  juror  at  this  court.  So  help  you  God. 

*  See  chapter  76,  R.  S.  1845 ;  chap.  101,  R.  8. 1874,  p.  725. 


CH.  XII.]  COSTS   AND   FEES.  293 

Miscellaneous  statutes. 

OATH  OF  A  PARTY  OP  THE  LOSS  OR  DESTRUCTION  OP  A  PAPER. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you  touching  the  loss  or  destruction 
of  any  paper  which  would  be  proper  evidence  in  this  cause.  So  help  you  God. 

OATH  OP  TRIERS  UPON  A  CHALLENGE  FOR  FAVOR. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will  well  and 
truly  try  and  find  whether  A  B,  the  juror  challenged,  stands  indifferent  be- 
tween E  F,  plaintiff,  and  C  D,  defendant,  in  the  issue  now  about  to  be  tried.  So 
help  you  God. 

OATH  OP  A  WITNESS  ON  A  CHALLENGE. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you  touching  the  challenge  of  A  B, 
a  juror,  called  in  this  cause,  etc. 

OATH  OF  OFFICER  ATTENDING  A  JURY  ON  THEIR  RETIREMENT. 

You  do  solemnly  swear,  by  the  ever-living  God,  that  you  will,  to  the  utmost 
of  your  ability,  keep  the  persons  sworn  as  jurors  on  this  trial  in  some  private 
and  convenient  place,  without  meat  or  drink,  except  water,  unless  ordered  by 
the  court ;  that  you  will  not  suffer  any  communication  with  them,  orally  or 
otherwise,  unless  by  order  of  the  court,  or  to  ask  them  if  they  have  agreed 
upon  a  verdict,  until  they  shall  be  discharged,  and  that  you  will  not,  before 
they  render  their  verdict,  communicate  to  any  one  the  state  of  their  deliber- 
ations or  the  verdict  they  have  agreed  upon.  So  help  you  God, 

OATH  OF  A  PARTY  TOUCHING  HIS  ABILITY  TO  PROCURE  THE  ATTENDANCE   OP  A 
SUBSCRIBING  WITNESS. 

You  do  solemnly  swear,  by  the  ever-living  God,*  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you  touching  your  ability  to  procure 
the  attendance  of  X  Y,  a  subscribing  witness  to  the  paper-writing  now  here 
in  question.  So  help  you  God. 

Other  oaths  may  be  framed  to  suit  the  various  occasions  in  practice.  The 
form  is  prescribed.(z) 

IN  CASE  THE  WITNESS  OR  PARTY  TO  BE   SWORN    WISHES  TO  affirm,  COM- 
MENCE THE  affirmation. 

You  do  solemnly,  sincerely  and  truly  declare  and  affirm  (concluding  as  in 
the  oath  above,  after  the  *).(«) 

(z)  Ch.  76,  R.  S.  1845,  §§  1,  2, 3,  4 ;  R.        (a)  §  2,  id. 
S.  1874,  725. 


COSTS   AND   FEES.  [CH.  XIII. 


In  case  of  appeal  costs  discretionary. 


CHAPTEE  XIII. 

COSTS  AND  FEES. 

1.  The  statute  of  costs  and  fees  applies  in  probate  matters. 

2.  In  case  of  appeal  in  such  matters,  costs  discretionary. 

3.  Actions  and  proceedings  by  non-residents  and  on  office  bonds ;  security  in 
the  first  instance  must  be  given,  or  suit  on  motion  must  be  dismissed. 

4.  Form  of  preliminary  security. 

5.  The  motion  to  dismiss  must,  however,  be  made  in  apt  time. 

6.  Security  after  suit  brought. 

7.  Affidavits  of  parties. 

8.  Form  of  security  to  be  given,  when  required  after  suit  brought. 

9.  Non-residents  cannot  be  executors  or  administrators,  guardians  or  con- 
servators ;  foreign  executors  or  administrators,  guardians  or  conservators,  how- 
ever, may  be  empowered,  but  must  always,  before  instituting  proceedings,  file 
security  for  costs. 

10.  Non-resident   creditors  of  an   estate  in  probate   must  file  preliminary 
security,  qiuere. 

11.  Appraisers'  fees  $2  per  diem. 

12.  Fees  of  the  officers  of  court. 

13.  Compensation  of  executors,  etc. 

14.  Allowances  to,  for  costs  and  disbursements. 

15.  After  expiration  of  two  years,  claimants  to  pay  costs  in  certain  cases. 

16.  The  applicant  to  be  discharged  on  resignation  as  executor  or  administrator 
must  pay  the  costs  of  the  application. 

17.  Suits  on  bonds ;  the  party  for  whose  use  suit  is  brought  must  give  pre- 
liminary security,  and  is  liable  to  pay  costs  on  failure  to  maintain  his  suit. 

18.  Delinquent  executors   and  administrators  cited  or  attached,  must   pay 
costs. 

19.  In  probate,  as  in  chancery,  costs  are  usually  discretionary. 

20.  Witness'  fees. 

21.  Commissioners'  fees,  etc. 

1.  The  statute  of  costs  and  fees  applies  to  all  actions  commenced 
in  the  probate  court  on  official  bonds,  for  the  use  of  any  person ;  but 
when  the  opposite  party  omits  to  make  a  motion  to  dismiss  the 
action  for  that  cause  in  the  inferior  court,  he  waives  the  objection 
and  cannot  make  it  in  the  circuit  court.(a) 

2.  IN  ALL  CASES  OF  APPEAL  from  the  decision  of  a  court  of  pro- 
bate, the  costs  shall  be  in  the  discretion  of  the  circuit  court,  (b) 

(a)  Robertson  v.  Co.  Corns.,  5  Gilm.  Hill's  Common  Law,  at  pp.  625-637; 

559 ;  Yocum  v.  Waynesville,  39  111.  220.  see,  also,  Hill's  Ch.  Pr.,  Costs;  §  21,  R. 

(6)  §  18,  ch.  26,  R.  8.  1845 ;  the  statute  S.  1874,  p.  300. 
and  decisions  are  given  in  full  in  2 


CH.  XIII.]  COSTS   AND   FEES.  295 

Security  after  suit  brought. 

3.  IN  ALL  ACTONS  ON  OFFICE  BONDS  for  the  use  of  any  person ; 
actions  on  the  bonds  of  executors,  administrators  or  guardians ;  qui 
tarn  actions ;  actions  on  any  penal  statute ;  and  in  all  cases  in  law 
or  equity,  where  the  plaintiff,  or  person  for  whose  use  an  action  is  to 
be  commenced,  shall  NOT  BE  A  RESIDENT  OF  THIS  STATE,  the  plaintiff 
or  person  for  whose  use  the  action  is  to  be '  commenced,  shall,  before 
he  institutes  such  suit,  file,  or  cause  to  be  filed  with  the  clerk  of  the 
circuit  or  supreme  court,  in  which  the  action  is  to  be  commenced,  an 
instrument  in  writing,  of  some  responsible  person,  being  a  resident 
of  this  State,  to  be  approved  by  the  clerk,  whereby  such  person  shall 
acknowledge  nimself  bound  to  pay,  or  cause  to  be  paid,  all  costs 
which  may  accrae  in  such  action,  either  to  the  opposite  party,  or  to 
any  of  the  officers  of  such  courts: 

4.  Which  INSTRUMENT  IN  WRITING  may  be  in  THE  FORM  and  pur- 
port following,  to  wit: 

A.  B.  ) 

v.     >•  Court. 

C.  D.  j 

I  do  hereby  enter  myself  security  for  all  costs  which  may  accrue  in  the 
above  cause. 

Dated  this  day  of  ,  A.  D.  18    . 

(Signed.) 

E.  F. 

Before  commencing  proceedings  for  a  non-resident  party  in  any 
court  in  Illinois,  this  statutory  bond  must  be  filed  and  approved  by 
the  clerk. 

5.  It  cannot  be  dispensed  with.    It  may  be  waived,  by  steps  taken 
on  the  part  of  the  adverse  party,  but  if  a  motion  to  dismiss  the  pro- 
ceeding for  the  want  of  preliminary  security,  where  it  is  required, 
be  aptly  made,  the  proceeding  must  be  dismissed.    The  statute  is 
peremptory,  viz.:  If  any  such  action  shall  be  commenced  without 
filing  such  instrument,  the  court,  on  motion,  shall  dismiss  the  same, 
and  the  attorney  of  the  plaintiff  shall  pay  all  costs  accruing  there- 
on, (c) 

6.  SECURITY  AFTER  SUIT  BROUGHT.    Again,  if  in  any  case  the 
court  shall  be  satisfied  that  any  plaintiff  is  unable  to  pay  the  costs 
of  suit,  or  that  he  is  so  unsettled  as  to  endanger  the  officers  of  the 

(c)  People  v.  Cloud,  50  111.  439 ;  §  3,  R.  S.  1874,  p.  297. 


296  COSTS   AND   FEES.  [CH.  XIII. 

Non-resident  creditors  must  file  preliminary  security. 

court,  with  respect  to  their  legal  demands,  it  shall  be  the  duty  of  the 
court,  ou  motion  of  the  defendant,  or  any  officer  of  the  court,  to 
rule  the  plaintiff  on  or  before  a  day  in  such  rule  named,  to  give 
security  for  the  payment  of  costs  in  such  suit ;  if  such  plaintiff  shall 
neglect  or  refuse,  on  or  before  the  day  in  such  rule  named,  to  file  an 
instrument  of  writing  of  some  responsible  person  being  a  resident 
of  this  State,  whereby  he  shall  bind  himself  to  pay  all  costs  which 
have  accrued,  or  may  accrue  in  such  action,  the  court  shall,  on  motion, 
dismiss  the  suit.(rf) 

7.  On  application  for  security,  under  this  section,  the  affidavits 
of  the  parties  may  have  equal  weight.(e)     The  motion  is  addressed 
to  the  discretion  of  the  court ;  its  decision  cannot  be  assigned  for 
error.  (/)     If  the  affidavit  be  insufficient,  however,  and  the  motion 
be  granted,  the  decision  will,  on  error,  be  reviewed,  (g) 

8.  When  required,  the  instrument  to  be  filed  under  section  2  may 
be  as  follows: 

(Title  of  suit) 

I  do  hereby  enter  myself  security  for  costs  in  this  cause,  and  hereby  bind 
myself  to  pay  all  costs  which  have  accrued  or  may  accrue  in  such  action,  either 
to  the  opposite  party  or  to  any  of  the  officers  of  this  court,  in  pursuance  of  the 
laws  of  this  State.  E  F. 

Dated  this  day  of  ,  18     . 

9.  No  non-resident  of  this  State  can  be  appointed  or  allowed  to 
act  as  administrator.(A)    But  executors  and  administrators  appointed 
in  any  other  State  or  territory  of  the  United  States  may,  under 
certain  restrictions,  act.(t')    And  foreign  executors  or  administrators 
must  give  the  preliminary  bond  for  costs,  as  in  case  of  non-resi- 
dents.^')    So  with  foreign  guardians,(&)  and  so  with  foreign  con- 
servators or  trustees.  (Z)     This  security  must  be  given  to  begin  with 
by  such  non-residents.(w) 

10.  Non-resident  creditors  of  an  estate  of  a  decedent  testate  or 
intestate  who  inaugurate  proceedings  against  an  executor  or  admin- 
istrator under  section  61,  act  of  April  1,  1872,  must  file  preliminary 
security  under  section  1,  chapter  26,  Eevised  Statutes,  it  would 
seem. 

(cf)  §4,  R.  S.  1874,  p.  297.  ( j )  §  43,  id. 

(e)  Hamilton  v.  Dunn,  22  111.  259.  (k)  %  50,  act  of  April  10, 1872.     See 
(/)  Selby  v.  Hutchinson,  4  Gilm.  319  ;    p.  68,  supra. 

Gesford  v.  Critzer,  2  Gilm.  698.  (I)  %  7,  act  of   February  12,  1853 ; 

(g)  Ball  v.  Bruce,  27  111.  332.  G.  333  ;  P.  612  ;  S.  828. 

(A)  §  18,  R.  S.  1874,  p.  107.  (TO)  C.  33,  R.  S.  1874,  p.  297,  p.  295, 

(0  §§  42,  43,  R.  S.  1874,  p.  112.  supra. 


CH.  XII1.J  COSTS  AND   FEES.  297 


Fees  of  the  officers  of  court. 


On  appeal  by  a  non-resident  from  any  order,  decree  or  judgment 
of  the  county  court,  security  for  costs  must  be  filed  in  the  first 
instance. 

Where  appeal  is  prayed  for,  however,  the  bond  for  costs  is  given 
by  all,  whether  resident  or  non-resident,  in  order  to  perfect  the 
appeal.(w) 

11.  Appraisers  are  allowed  two  dollars  per  day  each  for  actual 
time  spent  in  attendance  upon  and  in  the  performance  of   their 
duties.(o) 

12.  The  fees  of  the  officers  of  court  are  to  be  paid,  from  time  to 
time,  as  the  services  are  rendered. 

13.  Executors  and  administrators  are  allowed,  as  compensation 
for  their  services,  to  be  fixed  by  the  court,  a  sum  not  exceeding  six 
per  centum  on  the  amount  of  personal  estate,  and  not  exceeding 
three  per  centum  on  the  money  arising  from  the  sale  of  real  estate. 

There  are  two  grounds  upon  which  an  executor  or  administrator 
may  be  charged  with  interest.  1st.  When  he  has  been  guilty  of 
negligence  in  laying  out  the  money  for  the  benefit  of  the  estate. 
2d.  When  he  has  made  use  of  the  money  to  his  own  profit  and 
advantage,  or  has  committed  some  other  malfeasance,  (p) 

As  against  administrators,  the  general  rule  is  that  he  is  charge- 
able with  interest  whenever  he  receives  interest,  uses  the  money,  or 
retains  it  unreasonably.^) 

14.  Additional  allowances  are  to  be  made  for  costs  and  charges  in 
collecting  and  defending  the  claims  of  the  estate,  and  disposing  of 
the  same,  as  may  be  reasonable.(r)     As  an  executor  is  a  trustee  for 
the  estate  he  represents,  he  can  receive  no  compensation  for  his 
time  and  services  expended  in  preparing  the  defense   to  a  suit 
against  the  estate,  or  a  claim  for  dower,  nor  can  he  receive  com- 
pensation for  professional  services  rendered,  by  him,  as  an  attorney 
at  law,  in  defending  such  suit,  for  a  trustee  can  make  no  profit  out 
of  his  office.      The    statute  which    provides   that  executors    and 
administrators  may  receive  "such  additional  allowances  for  costs  and 
charges  in  collecting  and  defending  the  claims  of  the  estate,  and 

(n)  See  Appeal,  p.  272,  supra.  amount  must  be  governed  by  the  cir- 

(0)  §  59,  R.  S.  1874,  p.  114  ;  Cothran's  cumstances  ot  each  particular  case. 

Statutes,  p.  63.  A  reasonable  compensation  is  all  that 

(p)  Rowan  v.  Kirkpatrick,  14  111.  10.  the  law  provides  for.  It  is  not  ex- 

(q)  Id.;  conservators'  fees,  see  p.  141,  pected  he  will  speculate  off  the  estate. 

supra.  And  see  Bassett,  Adm'r,  v.  Willard, 

(r)  %  133,  R.  S.  1874,  p.  127.  The  Adm'r,  27  111.  38,  39. 


298  COSTS   AND  FEES.  [CH.  XIII. 

Delinquent  executors  and  administrators. 

disposing  of  the  same,  as  shall  be  reasonable,"  does  not  proceed 
further  than  to  give  such  officers  "  money  out  of  pocket,"  that  is, 
money  actually  paid  by  them  to  others  in  the  discharge  of  their 
duty.  It  is  no  AV  arrant  for  an  allowance  for  their  own  services,  as 
agent  or  attorney  of  the  estate,  (s) 

15.  The  party  suing  after  the  expiration  of  two  years  from  the 
time  of  the  grant  of  letters,  and  after  the  estate  is  found  to  be  and 
recorded  as  insolvent,  must  pay  all  costs.(^) 

Guardians,  on  settlement,  shall  be  allowed  such  fees  and  compen- 
sation for  their  services  as  shall  seem  reasonable  and  just  to  the 
court.(w) 

An  attorney  employed  by  an  executor  may  enforce  the  payment 
of  his  fee  against  an  administrator  de  bonis  non  of  the  sameestate.(v) 

16.  RESIGNATION.     An  executor  or  administrator  on  resigning 
must  pay  all  costs  incurred  on  the  application  for  his  discharge;  a 
judgment  may  be  entered  therefor  and  collected  on  execution. (w) 

17.  SUITS  ON  BONDS.     The  party  for  whose  use  a  suit  may  be 
instituted  on  executors,  administrator's,  guardian's  or  conservator's 
bonds  must  give  security  for  costs,  and  in  the  first  instance  is  made 
liable  therefor  in  case  he  fail  in  his  suit.(z) 

18.  DELINQUENCY.     An  executor,  or  administrator,  or  guardian, 
or  conservator  delinquent  in  his  inventory  or  account,  or  in  other 
matters,  is  liable  and  must  pay  the  costs  of  citation  and  attachment 
when  such  proceedings  become  necessary,  (y) 

19.  Inasmuch  as  the  clerks  of  the  several  courts  of  record  are  of 
their  own  motion  to  tax  and  enter  the  costs  and  fees  in  the  procee- 
dings which  we  are  now  considering,  it  is  unnecessary  to  pursue  the 
subject  further  here.     If  the  reader  desire  full  information  in  the 
matter  of  costs  and  fees,  he  would  do  well  to  read  the  chapters  on 
COSTS  AND  FEES  in  Hill's  Chancery  Practice,  2  Hill's  Common 
Law,  and  in  the  Municipal  Officer. 

When  the  fee  bill  is  made  up  by  the  clerk,  it  will  be  regarded  as 
prima  facie  correct,  and  the  debtor  of  costs  can  challenge  it  only 

(s)  Hough  v.  Harvey,  71  111.  72.                (x)  §  1,  ch,  26,  R.  S.   1845  ;  §  25,  act 

(t)  $  129,  R.  S.  1874,  p.  127.  April  1,  1872  ;  R,  S.  1874,  p.  109  ;  Coth- 

(«)  $  42,  R.  S.  1874,  p.  56.  ran's  Statutes,  p.  54. 

(v)  Green     v.     Grimshaw,  11     111.        (y)  §  114, R.S.  1874, p.  125  ;  see  pp.239, 

389  240,  supra;  Cothran's  Statutes,  1880, 

(tr)§40,  R.  S.  1874,  p.  111.  p.  78. 


CH.   XIII.]  COSTS   AND    FEES.  299 

Commissioner's  fees,  etc. 

in  a  direct  proceeding,  either  by  replevying  the  fee  bill  under  the 
26th  section  of  the  statute  of  costs  (Cothran's  Annotated  Statutes, 
354),  or  by  a  motion  to  re-tax  costs. (z) 

20.  WITNESS  PEE.     The  act  of  March  29,  1872  (§  49)  fixes  the 
fees  for  each  witness  in  probate  matters  at  one  dollar  per  day,  if 
the  fee  be  claimed  at  the  trial,  which  the  clerk  is   to  tax  as  costs, 
when  the  fee  is  claimed,  by  affidavit  of  attendance  filed. 

21.  DEPOSITIONS  of  resident  witnesses  may  be  taken  before  any 
judge,  justice  of  the  peace,  clerk  of  a  court,  master  in  chancery 
or  notary  public,  without  a  commission   or  filing  interrogatories, 
on  giving  ten  days'  notice  of  the  time  and  place  of  taking  the 
same,  and  one  day  in  addition  thereto,  Sundays  inclusive,  for  every 
fifty  miles  travel  from  the  place  of  holding  court  to  the  place  where 
the  deposition  is  to  be  taken.     If  the  party  entitled  to  notice  and 
his  attorney  reside  in  the  county  where  the  deposition  is  to  be  taken, 
five  days'  notice  will  be  sufficient.   The  depositions  of  non-resident 
witnesses  are  to  be  taken  upon  commission  directed  to  any  compe- 
tent and   disinterested  person,  or  any  judge,  master  in  chancery, 
notary  public  or  justice  of  the  peace  of  the  county  or  city  in  which 
the  witness  resides,  or  if  the  witness  be  in  military   or  naval  ser- 
vice of  the  United  States,  to  any  commissioned   officer   in  such 
service.     In  both  cases  a  commissioner  of  deeds  appointed  for  the 
State  may  act  to  take  the  deposition. 

In  making  return  of  a  deposition,  great  care  should  be  exercised. 
Every  provision  of  the  statute  regulating  the  mode  of  procedure 
must  be  substantially  complied  with.  It  has  been  held  that  where 
a  note,  professedly  an  exhibit  referred  to  in  a  deposition,  was  not 
attached  or  inclosed  with  the  commission  and  interrogatories  sealed 
and  sent  to  the  clerk,  but  a  part  only  of  the  papers  were  so  sent  by 
the  commissioner,  but  the  note,  interrogatories  and  commis- 
sion and  other  papers  were  sent  by  him  to  the  party's  attorneys, 
the  deposition  should  have  been  suppressed  on  motion,  (a) 

(z)  Parisher  v.  Waldo,  72  111.  71.  R.  S.  1874,  p.  488  ;  Cothran's  Statutes, 

(«)  Edleman  v.  Byers  &  Gilmore,  75    p.  662. 
HI.  367;  See  act  March  29,1872.  Ch.  51, 


CH.  XIV.J  THE  PROBATE  RECORD.  301 

The  forms. 


CHAPTER  XIV. 

THE   PROBATE    RECORD. 

The  probate  record,  as  a  whole,  comes  now  for  examination  before 
as.  The  clerk  keeps  this  record,  but  the  litigants  and  the  court  do 
each  a  share  in  making  and  perfecting  the  record  in  civil  procedure, 
either  in  probate,  at  common  law,  or  in  chancery.  The  integrity  of 
the  record  and  its  completion  and  perfection  is,  or  should  be  closely 
watched  and  firmly  insisted  on  by  the  court,  and  constantly  aimed 
at  by  all  the  parties  in  a  cause. 

Having  quite  fully  suggested  the  forms*  of  procedure,  mainly  as 
we  find  them  stereotyped  on  the  records  in  the  county  courts  of  Illi- 
nois, modeled  after  the  forms  of  the  civil  law  from  point  to  point, 
in  developing  the  subject,  so  interesting,  yet  so  delicate  and  impor- 
tant, it  is  unnecessary  now  to  do  more  than  to  indicate  the  stages  of 
the  growth  and  development  of  THE  RECORD  in  this  jurisdiction. 
Uniformity  and  systematic  care  in  all  the  forms,  simple  and  plain 
though  they  be,  are  desirable,  especially  in  matters  pertaining  to 
landed  property  —  real  estate.  Much  depends  upon  the  competency 
and  fidelity  of  the  clerk,  the  custodian  of  the  records,  for  their  neat- 
ness, style  and  system ;  more,  upon  the  careful  supervision  of  the 
county  judge.  Passing,  generation  after  generation,  in  one  form  or 
another  through  the  probate  jurisdiction,  as  one  by  one  their  pro- 
prietors leave  "  this  bank  and  shoal  of  time,"  estates  should  be  care- 
fully administered  and  faithfully  transmitted,  unimpaired,  either 

*  ALPHABETICAL  LIST  OP  FOBMS  IN  THE  PRECEDING  PAGES: 

Acceptance    of    appointment    of  Administrator's   notice   of  settle- 
guardian  and  guardian  ad  litem,  117        ment  of  claims 225 

Acceptance  of  resignation  of  exec-  Administrator's   sale  of   personal 

utor  or  administrator 98        estate , 181 

Acceptance   of   resignation   of    a  Administration,  letters  of 79 

guardian 124  Administration,  petition  for  revo- 

Account,  administrator's 240,  242        cation  of  letters  of 99,  100 

Account    of  personal   estate  and  Administration,  decree   revoking 

debts  preliminary  to  sale  of  real  letters  of 101 

estate 202    Advertisement,  certificate  of 51 

Absence,  affidavit  of 130  Advertisement,  notice   to   guard- 

Adirflnistration,  petition  for  letters  ian 131 

of 77  Affidavit  of  death  and  intestacy. .     77 

Administrator,  oath  of 79     Affidavit  of  infancy 117 

Administrator  with  the  will  an-  Affidavit  of  absence 130 

nexed,  oath  of 80    Affidavit  of  concealment 130 

Administrator's  account 240,  242    Affidavit  of  non-residence 129 


302 


THE    PROBATE   RECORD. 


[CH.  XIV 


The  forms. 


according  to  the  law  of  descent  or  the  will  of  their  late  owners,  to 
their  kinsmen  and  beneficiaries.  Whether,  in  a  given  cause,  this  has 
been  done  is  to  be  determined  by  the  record.  Although  this  can- 
not be  impeached  if  the  court  acquires  jurisdiction,  except  on  appeal 
or  in  error,  yet  it  is  requisite  that  a  high  degree  of  care  be  exercised 
in  all  matters  in  probate,  that  true  and  perfect  records  be  made. 
The  integrity  and  honor  of  the  trustees,  whose  functions  and  powers 
it  has  been  our  province  to  consider,  are  involved  in  their  records 
here.  Theirs  are  the  most  important  and  sacred  trusts  known  to 
the  law,  and  can  only  be  discharged  through  a  perfect  and  complete 
record  in  the  probate  court  from  which  they  derive  their  authority. 


Affidavit  of  posting  notices 182 

Affidavit  for  a  dedimus 37 

Allowance  to  the  widow  and  chil- 
dren   221 

Appointment  of  guardian  ad  litem,  117 

Appraisement,  warrant  for 171 

Appraisement  bill 173 

Assent  to  resignation  of  executor 

or  administrator 99 

Attachment  to  compel  the  produc- 
tion of  a  will 16 

Attachment  to  compel  the  attend- 
ance of  witnesses 32 

Award,  widow's 221 

Bond  of  administrator 78 

Bond  of   administrator,  with  the 

will  annexed 80 

Bond  of  executor 30 

Bond  of  guardian 113 

Bond  by  legatee  or  distributee  . . .  234 

Bill,  the  appraisement 178 

Bill  of  sale 183 

Certificate  to  appraisement  bill  . .  173 
Certificate  of  publication,  printer's  51 
Certificate  of  the  clerk  to  letters 

testamentary 50 

Certificates  of  proof  under  a  dedi- 

mus 38 

Certificate  of  insanity 156 

Citation  to  a  minor 112 

Citation  notice  and  proof,  of  a  nun- 
cupative will 51 

Claims,  notice  of  settlement  of . . .  225 

Codicil 12 

Concealment,  affidavit  of 130 

Conservator,  petition  for 154 

Conservator's  inventory 185 

Death,  affidavit  of 77 


Debts,  desperate 176-179 

Decree  for  removal  of  guardian. .  133 
Decree  removing  an  executor  or 

administrator 101 

Dedimus 33,  34 

Dedimus  (short  form) 38 

Dedimus,  affidavit  for 37 

Desperate  debts,  suggestion  of . . .  ITT 
Desperate  debts,  application  to  sell 

and  compound 177 

Distributee,  bond  by 224 

Entry  of  an  order  to  compel  the 

production  of  a  will 15 

Executor's  bond 30 

Executor's  oath 29 

Executor,  petition  to  remove  an . .  59 

Executorship,  renunciation  of. ...  16 

Guardian's  bond 113 

Guardian's  inventory 185 

Guardian,  petition  of,  for  permis- 
sion to  resign 123,  124 

Guardian,  petition  for  the  removal 

of  a 124,  125 

Guardian,  summons  to  a     125 

Guardian,  decree  of  removal  of  .  .   133 
Guardian    (see    constructive    ser- 
vice). 

Guardian  ad  litem,  order  appoint- 
ing a 117 

Guardianship,  petition  for Ill 

Guardianship,  letters  of 116 

Infancy,  affidavit  of 117 

Inquisition  as  to  insanity 155 

Insane,  record   of    proceeding   in 

case  of  the 156 

Insanity,  inquisition  as  to 155 

Insanity,     statement     of      (peti- 
tion)     154 


CH.  XIV.J 


THE    PROBATE    RECORD. 


303 


The  fiduciary  relation. 


The  jealousy  with  which  these  trustees  are  watched  by  the  courts, 
in  the  discharge  of  their  trusts,  is,  perhaps,  nowhere  more  fully  illus- 
trated than  in  the  cases  where  they  have  attempted  to  so  administer 
the  estates  committed  to  their  charge  as  to  make  gain  for  themselves, 
beyond  the  compensation  which  the  law  gives  them.  The  fiduciary 
relation,  especially  in  sales  by  agents  and  trustees,  seems  to  have 
been  made  use  of  more  frequently  for  this  purpose.  But  equity  has 
established  an  unbending  rule  to  meet  every  exigency  —  a  rule  of 
disability.  The  rule  involved  is  not  only:  (1.)  That  an  agent 
intrusted  to  sell  property,  or  a  trustee  cannot  purchase  at  his  own 


Instructions  for  taking  a  deposi- 
tion    34,  35 

Intestacy,  affidavit  of 77 

Inventory  of  the  estates  of  the  de- 
ceased    170 

Inventory  by  the  guardian  and 
conservator 185 

Legatee,  bond  by 224 

Letters  of  administration 79 

Letters  of  administration,  petition 

for 77 

Letters  of  guardianship 116 

Letters  testamentary,  petition  for,  29 

Letters  testamentary 49,  50 

Letters  testamentary  and  letters  • 

of    administration,  petition   for 

revocation  of 99,  100 

Lunalico  de  inquirendo,  writ 

of 155 

Minor,  citation  to  a 112 

Xon-residence,  affidavit  of 129 

Notice  and  citation  to  heirs,  etc., 

of  probate  of  nuncupative  will,     51 
Notice,  publication,  to  guardian. .   131 
Notice,  administrator's  sale  of  des- 
perate claims 176,  177 

Notice  of   administrator's  sale  of 

personal  estate 181 

Notice,  affidavit  of  posting 182 

Notice,     administrator's,     of    the 

settlement  of  claims 225 

Notice  of  petition  to  sell  real  estate,  206 
Nuncupative  will 13 

Order  on  granting  a  petition  to 
compel  the  production  of  a  will,  15 

Order  appointing  a  guardian  ad 
litem 117 

Oath  of  executor 29 

Oath  of  administrator. .  79 


Oath   of    administrator  with 
will  annexed  . . 


the 


80 


Pendency  of  suit  to  sell  real  estate,  206 

Petition  for  guardianship Ill 

Petition  for  a  guardian  by  minors, 

112,  113 
Petition  for  a  guardian  by  a  third 

party 114,  115 

Petition  of  guardian  for  permis- 
sion to  resign 123,  124 

Petition  for  the  removal  of  a  guar- 
dian    124,  125 

Petition  for  process  to  compel  the 

production  of  a  will 15 

Petition  for  letters  of  administra- 
tion    77 

Petition  for  letters  testamentary .  .  29 
Petition  to  supersede  the  appoint- 
ment of  an  executor 59 

Petition  for  revocation  of  letters 
testamentary  or  of  administra- 
tion    99,  100 

Petition  for  conservator  of  an  in- 
sane person 154 

Petition  for  the  sale  of  real  estate,  204 

Posting,  affidavit  of 182 

Printer's  certificate 51 

Production  of  a  will,  petition  for 

process  to  compel 15 

Production  of  a  will,  order  of  entry,  15 

Production  of  a  will,  attachment,  16 

Proof  of  will  (common  form) ....  46 
Proof  of  execution  of  a  will,  with 

the  record 48,  49 

Publication  notice  to  guardian. . .  131 

Publication,  printer's  certificate  of,  51 

Publisher's  certificate 51 

Real  estate,  notice  of  application 

to  sell 206 

Real  estate,  sale  of,  petition  for,  194,  205 

account  preliminary  to  sale,  202 


304 


THE   PROBATE   RECORD. 


[CH.  XIV. 


The  fiduciary  relation. 


sale  ;  but,(a)  (2.)  That  he  cannot  purchase  surreptitiously  by  inter- 
posing a  third  party,  or  by  connivance  with  another(J)  at  the  time 
of  or  during  the  very  transaction  for  which  his  agency  or  trust  was 
established,  or  while  his  trust  relation  continues ;  and,  (3. )  It  is 
a  rule  of  disability,  up  to  the  close  of  the  sale,  the  conveyance  and 
the  payment  of  the  purchase-money  ;(c)  (4.)  But  an  executor  or 
administrator  or  guardian  or  conservator  cannot  renounce  his  trust, 
shake  off  his  fiduciary  relation,  and  purchase.(^) 

And  further,  the  wrongful  receipt  and  conversion  of  trust  prop- 
erty place  the  receiver  in  the  same  situation  as  the  trustee  from 
whom  he  received  it,  and  he  is  subject  to  the  same  liability  as  the 
trustee  himself,  (e) 

In  such  cases  a  court  of  equity,  with  a  broader  jurisdiction,  brancl- 


(a)  Currier  v.  Green,  2  N.  H.  225. 

(V)Kru8e  v.  Steffens,  47  111.  112; 
Kerfoot  v.  Hyman,  52  id.  512  ;  Bobbins 
v.  Butler,  24  id.  432 ;  Lewis  v.  Hillman, 
3  H.  L.  607 ;  Oliver  v.  Court  8,  Price, 
127, 164. 

(e)  Rosenberger^s  Appeal,  26  Penn. 
St.  67;  Miles  v.  Wheeler,  43  111.  123; 
Charter  v.  Trendy  an,  11  Cl.  &  F.  714. 

(d)  Despard  v.  Ormsby,  Colles'  P.  C. 


459;  Shelton  v.  Homer,  5  Mete.  468; 
Thorp  v.  McCullum,  1  Gilm.  614  ,  Un- 
derwood's Notes  and  cases  cited,;  see 
HILL'S  CHAN.  PR.  394-402. 

(e)  Rolf  e  v.  Gregory,  34  L.  J.  Ch.  274 ; 
Moloney  v.  Kernan,  2  Dr.  &  W.  31 ; 
Cumberland  Coal  Co.  v.  Sherman,  10 
and  20  Md. ;  Tyrrell  v.  Bank  of  Lon- 
don, 10  H.  L.  26  ;  Rosenberger's  Appeal, 
26  Penn.  St.  67. 


Relinquishment  of  specific  articles 
by  the  widow  or  children 220 

Removal  of  guardian,  decree  for. .   133 

Renunciation  of  executorship. ...     16 

Resignation,  acceptance  of  a  guar- 
dian's    124 

Resignation  of  executor  or  admin- 
istrator    97,  98 

Resignation  of  executor  or  admin- 
istrator, notice  of 97 

Resignation  of  executor  or  admin- 
istrator, acceptance  of 98 

Resignation  of  executor  or  admin- 
istrator, assent  to 99 

Residence  unknown,  affidavit  of. .   130 

Return  of  cepi  corpus  on  an  at- 
tachment    32 

Revocation  of  letters  testament- 
ary, etc 101 

Sale,  administrator's  sale  of  per- 
sonal estate 181 

Sale,  bill  of 183 

Sale  of  desperate  debts 176-179 

Sale   of   real   estate,   preliminary 

account 202 

Sale  of  real  estate,  petition  for,  204,  205 
Service  of  a  subpoena,  proof  of ...     32 


Statement  of  insanity 154 

Subpoena  for  subscribing  witnesses 

to  a  will 31,  32 

Summons  to  a  guardian 125 

Testamentary,  petition  for  letters,  29 

Testamentary  letters 49,  50 

Testamentary,  petition  for  revoca- 
tion of  letters 99,  100 

Testamentary   letters,    decree    of 

revocation  of 101 

Unknown  residence,  affidavit  of. .  130 

Venire  for  a  jury  on  a  writ  de  luna- 

tico  inquirendo 1 56 

Warrant  for  appraisement 171 

Widow's  award 221 

Widow's  relinquishment   of   spe- 
cific articles 220 

Will 11,  12 

Will,  nuncupative 13 

Will,  petition  to  compel  the  pro- 
duction of  a 15 

Will,  proof  of  (common  form). ...  46 

Witnesses,  subpoena  for 31,  32 


OH.  XIV.]  THE   PEOBATE   RECORD.  305 

The  forms. 

ing  the  transactions  as  fraudulent,  at  once  goes  behind  the  record, 
and  with  care  and  firmness  compels  an  honest  and  faithful  adminis- 
tration; and  nowhere  else  than  in  Illinois  has  the  rule  been  more 
promptly  or  persistently  applied,  as  the  cases  already  cited  abun- 
dantly attest.  We  now  turn  to  the  record. 

At  common  law  the  making  of  the  record,  as  well  as  in  chancery, 
has  acquired  the  name  of  pleading.  (/) 

In  probate,  matters  of  guardianship  and  conservation,  the  general 
rules  of  pleading  are  applicable  to  a  certain  extent. 

The  petition  is  the  usual  mode  of  making  application  in  these 
matters  for  the  process,  and  the  orders,  judgments  and  decrees  of 
the  court. 

The  summons,  the  citation  and  the  attachment,  the  notice  and 
proofs  of  service  by  publication,  and  by  the  sheriff  and  his  deputies, 
are  common  to  all  these  courts,  at  common  law,  in  chancery  as  well 
as  in  probate. 

The  chancery  practice  is  prescribed  in  matters  pertaining  to  the 
exercise  of  this  jurisdiction  over  real  property.  ( g) 

Facts  are  to  be  presented  and  embodied  in  the  record.  An  appli- 
cant may,  of  his  own  knowledge,  be  cognizant  of  facts,  or  he  may  be 
morally  certain  of  their  existence  upon  information,  and  from  cir- 
cumstances known  to  him  which  afford  him  conclusive  proofs.  But 
in  presenting  such  facts,  he  must  be  exceedingly  careful  to  give  the 
court  the  same  kind  of  information  that  he  has,  for  the  court,  and 
not  the  applicant  or  witness,  is  the  arbiter.  Facts  of  a  certain  kind, 
like  the  days  of  the  week;  month  or  year,  the  times  of  holding 
court,  the  incumbents  of  the  county  offices,  are  known  to  the  court; 
no  allegation,  no  proof,  is  essential  in  such  matters.  But  where  a 
witness  was  present  and  saw  another  die;  saw  a  contract  made;  a 
will  executed,  he  knows  he  can  speak  of  his  own  knowledge.  The 
rules  of  evidence  are  of  equal  force  in  all  courts,  (h) 

Allegations  or  statements  of  facts,  in  a  verified  petition  or  affi- 
davit, must  be  made  in  such  a  manner  as  to  apprise  the  court  upon 
what  evidence  the  petitioner  or  affiant  speaks. 

The  solemnity  and  binding  force  of  an  oath  are  great,  and  require 
that  care  should  be  exercised  and  discrimination  used  in  detailing 
facts  for  the  purposes  of  judicial  procedure. 

(/)  Bee  2  Hill's  C.  L.  Pr.,  Pleading;        (h)  2  Hill's  C.  L.,  Evidence;  Green- 
Hill's  Chan.  Pr.,  Pleading.  leaf  on  Ev.,  etc. 
( g )  See  p.  206,  supra. 
39 


306  THE   PROBATE   RECORD.  [CH.  XIV. 

The  forms. 

The  test  of  an  affidavit  is,  that  its  statements  are  to  be  made  in 
such  a  positive  and  pointed  manner  that,  if  untrue  in  po.'nt  of  fact, 
perjury  may  be  predicated  upon  it. 

The  petition  differs  somewhat  from  an  affidavit;  it  partakes  of  the 
nature  of  a  pleading,  and  oftentimes  contains  allegations  of  facts, 
which  are  to  be  supported  by  proofs  to  be  adduced  on  the  hearing. 

The  affidavit  is  the  evidence  adduced  in  writing,  and  the  basis  of 
the  application.  When  verified,  the  petition  oftentimes,  however, 
performs  the  office  of  the  affidavit.  So  that,  in  putting  statements 
of  facts  material  to  any  step  in  judicial  proceedings  into  writing, 
care  must  be  used  not  to  involve  a  petitioner,  a  pleader,  an  affiant, 
a  deponent  or  a  witness  in  the  crime  of  perjury. 

Every  person  having  taken  a  lawful  oath,  or  made  affirmation,  in 
any  judicial  proceeding,  or  in  any  other  matter  where  by  law  an 
oath  or  affirmation  is  required,  who  shall  swear  or  affirm  willfully, 
corruptly  and  falsely,  in  any  matter  material  to  the  issue  or  point 
in  question,  or  shall  suborn  any  other  person  to  swear  or  affirm  as 
aforesaid,  shall  be  deemed  guilty  of  perjury  or  subornation  of  per- 
jury (as  the  case  may  be),  and,  upon  conviction  thereof,  shall  be 
punished  by  confinement  in  the  penitentiary  for  a  term  not  less 
than  one  year  nor  more  than  fourteen  years,  (i) 

Truth  is  the  basis  of  all  judicial  procedure,  and  to  find  the  facts 
and  act  upon  them,  as  occasion  requires,  constitutes  the  business  of 
courts  of  judicature. 

The  affidavit,  wherever  used,  is  to  be  of  one  general  form,  and 
tested  by  this  general  rule  : 

An  affidavit  should  be  entitled  of  the  cause  or  proceeding;  begin 
with  the  venue,  introduce  the  affiant,  state  the  subject-matter  known 
positively  to  the  affiant  in  direct  and  pointed  language,  and  the 
subject-matter  which  affiant  believes,  or  has  reason  to  believe,  as 
true  upon  information  and  belief,  detailing  the  circumstances  so  as 
to  show  that  the  belief  is  well  founded,  and  conclude  with  the 
jurat  and  signature. 

A  petition  should  be  entitled  of  the  cause ;  begin  with  the  address 
to  the  court,  introduce  the  petitioner,  and  in  like  manner  state  the 
subject-matter.  It  should,  if  verified,  conclude  with  an  affidavit 
that  it  is  true  of  the  knowledge,  or  information,  and  belief  of  the 
petitioner. 

(t)R.  S.  1874,  p.  387. 


OH.  XIV.]  THE   PKOBATE   EECORD.  307 

The  forms. 

Before  proceeding  with  the  evolution  of  the  probate  record,  it 
may  be  well  to  consider  the  requisites  of  affidavits  and  verified 
pleadings  generally  in  the  light  of  the  authorities. 

The  petition  is  filed,  and  entered  either  in  part  or  at  large,  upon 
the  record  by  the  clerk;  so  with  the  other  papers,  such  as  process, 
the  affidavits,  certificates  and  the  like.  The  orders,  decrees,  and 
judgments  are  recorded  at  full  length  upon  the  records  of  the  court. 
In  every  proceeding  there  are  the  files,  and  the  entries,  and  the 
records,  but  taken  together  they  are  usually  called,  in  speaking  of 
any  proceeding,  THE  KECORD. 

The  importance  of  recording  in  full  all  the  papers  which  make 
up  this  record,  as  well  as  the  orders,  decrees  and  judgments  of  the 
county  court,  in  probate  and  other  matters  involving  titles  to  real 
estate  and  the  rights  of  the  absent,  the  incapacitated,  the  widow  and 
the  orphan,  cannot  be  too  strongly  urged  upon  the  clerks  of  these 
courts. 

One  generation  passeth  away  and  another  generation  cometh,  so 
that  every  thirty  years  nearly  all  the  real  and  personal  property  of 
the  county  passes,  in  one  form  or  another,  under  the  administration 
in  probate.  Uniformity  in  these  records  throughout  the  State  is 
also  desirable.  To  attain  this  uniformity,  very  many  of  the  forms 
are  prescribed  as  we  have  seen  by  the  statute,  while  in  matters 
touching  real  estate,  the  well-known  forms  which  have  been  so  long 
stereotyped,  and  so  continually  repeated,  and  so  well  settled  by  'the 
profession  and  the  courts  in  Illinois  as  to  make  perhaps  the  most 
admirable  system  to  be  found  anywhere  in  civil  procedure,  are  made 
the  means,  the  models,  the  practice  in  this  jurisdiction. 

Coming  directly  from  the  exalted  jurisdiction  of  the  chancellor,( ;') 
we  naturally  feel  a  degree  of  pride  in  these  ample  forms,  and  shall 
endeavor  to  delineate  them  for  use  in  this  equally  important  depart- 
ment of  our  jurisprudence,  and,  if  possible,  with  a  higher  degree  of 
care  through  this  chapter  of  our  undertaking. 

In  the  former  chapters  we  have  considered  the  prescribed  occasions 
for  the  exercise  of  the  administrative  jurisdiction  of  what  in  some 
States  is  called  the  orphan's  court,(&)  and  carefully  and  critically 
examined  the  successive  steps  necessary  to  be  taken  in  caring  for 
the  person  and  the  estates  of  those  who,  in  the  law,  are  incapacitated, 
incapable  of  caring  for  themselves,  and  in  protecting  the  rights  of 

(j)  See  Hill's  Chan.  Pr.  (k)  e.  g.  Pennsylvania. 


308  THE   PKOBATE   KECOKD.  [CH.  XIV. 


The  forms. 


creditors  and  the  heirs  of  the  deceased,  according  to  the  law  of 
descent  and  the  executive  powers  of  the  county  judge  in  supervising 
the  transmission  of  property  according  to  this  law,  or  the  law  of 
wills  from  the  dead  to  the  living.  We  now  come  to  the  making  of 
the  records  for  these  several  occasions,  for  the  exercise  of  such  im- 
portant functions  by  these  lesser  but  not  inferior  courts,  through 
well-settled  forms. 

The  placita,  or  convening  order  of  the  court,  is  an  essential  recital 
to  the  record,  and  first  comes  into  view.(Z) 

It  should  disclose  (1)  the  venue,  (2)  the  court,  (3)  the  term  of  the 
culmination  of  the  record  into  an  order,  or  judgment,  or  decree,  and 
(4)  the  names  of  the  officers,  the  judge,  the  clerk  and  the  sheriff  con- 
cerned in  the  production  of  the  several  parts  of  which  the  record  is 
made  up.  One  general  form  may  be  given,  so  that  by  filling  the 
blanks  in  a  given  cause  no  error  in  this,  the  beginning  of  the  record, 
may  be  made. 

THE   PLACITA. 

United  States  of  America. 
STATE  OP  ILLINOIS,) 

County  of  .  f  * 

Pleas(m)  before  the  honorable  ,  judge  of  the  county  court  of  county, 
in  the  State  of  Illinois,  and  sole  presiding  judge  of  said  court,  and  at  a  regular 
term  thereof,  begun  and  held  at  the  court-house  in  the  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  ,  and  of  the  independ- 

ence of  the  United  States  the  ninety  .     Present,  the  honorable  , 

county  judge  of  county,  in  the  State  of  Illinois. 

Attest :  ,  Olerk.  ,  STieriff  said  County. 

,  State's  Attorney. 

The  placita  should  always  be  the  beginning  of  a  transcript  of  the 
record  in  any  of  the  proceedings  for  use  in  other  courts  and  places, 
for  the  reasons  so  clearly  stated  by  Judge  MCALLISTER.(>I)  His 
language  is  applied  to  the  record  at  common  law,  but,  if  we  mistake 
not,  it  applies  with  equal  force  to  the  chancery  or  the  probate  record. 
He  says:  "The  experience  and  wisdom  of  ages  have  taught  that 
these  forms  are  necessary  to  prevent  legal  proceedings  from  degen- 
erating into  such  looseness  and  confusion  as  to  render  rights  acquired 
under  them  insecure." 

Other  forms  are  used  frequently,  but  the  above  has  long  been  the 
accepted  form  at  common  law  and  in  chancery,  and  we  know  of  no 

(0  2  Hill's  C.  L.  18.  (n)  2  Hill's  C.  L.  1&-20. 

(m)  The  record  ;  2  C.  L.  15. 


CH.  XIV.]  THE   PROBATE   EECOED.  309 


The  forms 


reason  why  it  should  not  be  used  here.     It  would  be  difficult  to 
make  it  less  formal,  or  to  abridge  it. 
Next  comes  the 

PREAMBLE  AND  RECITAL. 

Be  it  remembered  that  heretofore,  to  wit,  on  the  day  of  ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  seventy  (or  A.  D.  187 -), 

A  B  ( if  by  attorney,  by  C  D,  his  attorney,)  and  filed  in  the  office  of  the  clerk  of 
this  court,  his  certain  petition,  in  writing,  which  is  in  words  and  figures  follow- 
ing : 

(Here  copy  at  length  the  petition,  as  at  page  94,  sujira.) 
Together  with  the  following  exhibit  thereto  attached,  which  is  in  words  and 
figures  following  : 

Here  copy  the  will  filed  with  the  petition,  and  then  complete  the 
record,  as  at  page  48,  supra,  concluding  with  the  record  of  the  let- 
ters testamentary,  and  of  the  bond  and  oath  of  the  executor,  (o) 

For  entries,  the  clerk  may  conveniently  use  the  following : 

PLACITA. 
(To  be  used  in  Counties  under  lownship  Organization.') 

STATE  OP  ILLINOIS,  |  „„  „,          ,    n  .  Q 

County  of  .  f**;  Term,  A.  D.  18    . 

The  county  court  of  county,  term,  began  and  held  at  the  court- 
house, in  the  of  ,  in  said  county,  on  Monday,  day  of  ,  A. 
D.  18  .  Present,  Hon.  .Judge;  ,  Clerk ;  .Sheriff.  Court 
opened  by  proclamation. 

PLACITA. 

(To  be  used  in  Counties  not  under  Township  Organization.) 

STATE  OP  ILLINOIS,)  „,         A    n  1Q 

County  of  .\  ss :  Term.  A.  D.  IS    . 

The  county  court  of  county,  sitting  for  the  transaction  of  judicial  busi- 

ness, began  and  held  at  the  court-house  in  the  of  ,  in  said  county, 

on  Monday,  the  day  of  ,  A.  D.  18     .     Present,  Hon.  ,  Judge  ; 

,  Clerk  ;  and  ,  Sheriff.     Court  opened  by  proclamation.* 

PLACITA. 
(For  any  day  of  the  term  after  its  commencement.) 

STATE  OF  ILLINOIS,)  -P          .    n  1Q 

County  of  \\*:  Term,  A.  D.  18    . 

The  county  court  of  county,  sitting  for  the  transaction  of  official  busi- 

ness, Tuesday,  the  ,  A.  D.  18    .     Court  opened  pursuant  to  adjourn- 

ment.    Present,  same  as  yesterday. 

(o)  See  pp.  48,  50,  supra. 

*  It  Is  not  necessary  that  the  sheriff  should  open  the  court. 


310  THE    PROBATE   RECORD.  [cH.  XIV. 


The  forms. 


ENTRY  OP  GRANT  OP  ADMINISTRATION. 

In  the  matter  of  the ) 

estate  of         ,  de-  >-  Appointment  of  Administrator. 

ceased.  ) 

This  day  appeared  in  open  court,  ,  and  applied  to  the  court  for  letters 

of  administration  on  the  estate  of  ,  deceased,  to  issue  to  her  and 

And  it  appearing  to  the  court  by  satisfactory  evidence  that  the  said  .  ,  late 

of  county,  in  the  State  of  Illinois,  died  in  the  said  county  on  or  about  the 

day  of  ,  A.  D.  18     ,  leaving  at  the  time  of  his  decease  property  and 

effects  in  this  State,  which  may  be  lost,  destroyed,  or  diminished  in  value  if  ad- 
ministration be  not  granted  thereon  ;  but  leaving  no  will  and  testament ;  and 
it  further  appearing  to  the  court  that  said  is  the  widow  (or,  as  the  case 

may  be)  of  said  intestate,  and  is  competent,  and  by  law  entitled,  to  administer 
upon  the  estate  of  which  the  said  died  seized,  and  she  desiring  that  the 

said  •  be  associated  with  her  in  such  administration ;  and  it  further  appear- 
ing to  the  court  that  the  value  of  the  estate  of  which  the  said  died  seized 
is  about  dollars ;  it  is  thereupon 

ORDERED  and  adjudged  by  the  court,  That  administration  on  the  estate, 
goods,  chattels  and  effects  of  the  said  ,  deceased,  be  granted  to  the 

said  and  ,  upon  their  entering  into  bond  in  the  penal 

sum  of  (here  insert  double  the  value  of  the  estate)  dollars,  conditioned  and  pay- 
able according  to  the  statute  in  such  cases  made  and  provided. 

And  now  again  come  the  said  and  ,  and  present  to 

the  court  for  approval  their  bond,  in  form  as  before  by  this  court  required,  with 
A  B  and  C  D  as  their  securities  thereon,  and  the  court  being  now  sufficiently 
advised  concerning  the  said  bond  and  said  security,  it  is 

ORDERED  and  adjudged  by  the  court,  That  the  said  bond  be  approved  and 
recorded. 

And  the  said        •  and  ,  having  respectively  taken  the  oath 

required  of  them  by  law,  as  such  administratrix  and  administrator,  it  is 

ORDERED,  That  letters  of  administration  on  said  estate  be  issued  to  the  said 
and 

If  the  person  entitled  to  administer  renounce,  that  fact  should 
be  stated  on  the  records.  In  short,  in  all  cases  the  material  facts, 
upon  which  is  founded  any  order  of  the  court,  should  appear  upon 
the  face  of  the  records,  so  as  to  make  the  legality  of  the  proceedings 
of  the  court  apparent. 

ORDER  APPOINTING   APPRAISERS. 

In  the  matter  of  the  J 

estate  of  ,  >•  Appointment  of  Appraisers. 

deceased.  ) 

It  is  ORDERED  by  the  court,  That  C  D,  E  F  and  G  H  be  authorized  and 
appointed  to  appraise  the  goods,  chattels  and  personal  estate  of  the  said 
deceased,  and  that  a  warrant  therefor  be  issued  to  them. 


CH.  XIV.]  THE   PKOBATE   KECOKD.  311 

The  forms. 

WHERE  APPRAISERS  DIE,  NEGLECT  OB  REFUSE  TO   ACT. 

In  the  matter  of  the  ] 


estate  of  ,  >  Appointment  of  Appraisers. 

deceased.  ) 

It  appearing  to  the  court  that  C  D,  one  of  the  appraisers  heretofore 
appointed  to  appraise  the  goods,  chattels  and  personal  estate  of  the  said  , 

deceased,  refuses  to  act  (or  as  the  case  may  be),  as  such  appraiser,  it  is, 
therefore, 

ORDERED,  That  J  K  be  appointed  in  his  place,  to  act  in  conjunction  with 
E  F  and  Q  H,  heretofore  appointed  appraisers  of  said  estate. 

ORDER  ON  THE  RETURN  OP  THE  INVENTORY. 

In  the  matter  of  the ) 

estate  of  ,  [•  Order  on  Inventory. 

deceased.  ) 

On  this  day  comes  ,  administratrix  of  the  said  estate,  and  presents 

to  the  court  the  inventory  of  the  real  and  personal  estate,  and  the  proceeds 
thereof,  of  the  said  ,  deceased,  so  far  as  the  same  have  come  to  the 

possession  or  knowledge  of  the  said  administratrix  ;  and  now,  the  court  having 
inspected  said  inventory,  and  being  sufficiently  advised  concerning  the  same, 
it  is 

ORDERED,  That  the  said  inventory  be  approved  and  filed. 

It  is  a  good  practice  observed  in  some  counties  to  record  the 
inventory,  whether  the  law  requires  it  or  -not. 

ORDER    FOR    A    CITATION    AGAINST     AN    ADMINISTRATOR    OR    EXECUTOR,    TO 
COMPEL    AN    INVENTORY. 

In  the  matter  of  the } 

estate  of  ,  [•  Order  for  Citation. 

deceased.  ) 

On  this  day  comes  C  D,  security  on  the  bond  of  J  K,  executor  (or  admin- 
istrator) of  the  estate  of  the  said  ,  deceased,  and  presents  to  the  court 
his  petition  for  a  citation  to  issue  out  of  this  court,  against  the  said  executor, 
to  show  cause  why  he  should  not  file  in  this  court  an  inventory  of  the  estate 
of  the  said  ,  deceased,  and  the  court  being  now  sufficiently  advised 
concerning  the  said  petition,  and  the  matters  and  things  therein  contained, 
it  is 

ORDERED  and  adj  udged,  That  a  citation  issue  in  accordance  with  the  prayer 
of  said  petition,  returnable  to  the  next  term  of  this  court,  to  which  time  it  is 

ORDERED,  That  the  hearing  of  the  said  petition  be  continued. 

ORDER  TO   FILE  AN  INVENTORY. 

0  D  v.  J  K,  executor  of) 

the  estate  of  ,[•  Order  to  File  Inventory. 

deceased.  ) 

And  now  on  this  day  again  comes  the  said  C  D,  as  also  the  said  J  K,  execu- 
tor  of  the  said  estate;  and  the  said  petition  heretofore  filed  by  the  said  C  D, 
requiring  the  said  J  K  to  file  an  inventory  of  the  said  estate,  coming  on  to 


312  THE   PKOBATE   KECOED.  [CH.  XIV. 


The  forms. 


be  heard,  and  the  court  being  now  advised  touching  the  matters  iii  said  petition 
alleged  against  the  said  J  K,  and  it  appearing  to  the  court  that  the  said  J  K 
has  failed  to  file  such  inventory  within  three  months  from  the  date  of  his 
letters  testamentary,  it  is 

ORDERED  and  adjudged,  That  the  said  J  K  make  out  and  file  in  this  court, 
on  or  before  the  first  day  of  the  next  regular  term  hereof,  a  full  and  perfect 
inventory  of  the  real  and  personal  estate  of  the  said  ,  deceased,  to 

which  time  it  is 

ORDERED,  That  these  proceedings  stand  continued. 

If  the  executor  or  administrator  do  not  appear  at  the  return  of 
the  citation,  the  order  should  be  varied. 

In  the  place  of  the  words,  "  as  also  the  said  J  K,"  insert  "  and 
the  said  J  K,  though  called,  came  not.  And  it  appearing  to  the 
court  that  the  citation  herein  has  been  duly  served  upon  the 
said  J  K." 

In  case  the  executor  does  not  appear,  add  "  and  that  a  copy  of 
this  order  be  served  on  the  said  executor." 

REVOCATION    OP    LETTERS    TESTAMENTARY,    OR    OF    ADMINISTRATION,   OR    OF 

GUARDIANSHIP. 

In  the  matter  of  the ) 

estate  of  ,>  Order  of  Revocation  of  Letters. 

deceased.  ) 

And  now  on  this  day  comes  ,  who  heretofore  filed  his  petition  in 

this  court,  praying  that  the  letters  of  administration  granted  to  A  B,  admin- 
istrator of  the  said  estate,  be  revoked  and  repealed  for  the  causes  in  such 
petition  set  forth,  and  the  said  A  B  also  comes,  as  well  in  person  as  by  G  L, 
his  solicitor.  And  now  the  said  petition  coming  on  to  be  heard,  and  it  appear- 
ing to  the  court  that  (here  state  the  particular  ground  upon  which  revocation  is 
to  be  ordered},  and  the  court  being  now  sufficiently  advised  touching  the 
premises,  it  is 

ORDERED  and  adjudged,  That  the  letters  of  administration  (testamentary  or 
guardianship,  as  the  case  may  be),  granted  to  the  said  A  B,  by  this  court,  <>n 
the  day  of  ,  A.  D.  18  ,  be  and  the  same  are  forever  revoked  and 

repealed,  and  the  said  A  B  removed  from  his  office  as  of  the  said 

And  it  is  further 

ORDERED,  That  he  pay  the  costs  by  the  said  in  and  about  his 

petition  expended,  which  are  taxed  at  dollars,  and  that  execution  issue 

therefor,  (p) 

ORDER  APPOINTING    AN    ADMINISTRATOR   OR    GUARDIAN,  WHERE   THE   OFFICE 
HAS    BECOME    VACANT. 

In  the  matter  of  the ) 

estate  of  ,j-  Order  Appointing  Administrator. 

deceased.  ) 

And  now  on  this  day  comes  ,  and  applies  to  the  court  for  letters  of 

(p)  See  p.  299,  supra. 


CII.  XIV.]  THE   PROBATE   RECORD. 

The  forms. 

administration  on  the  estate  of  the  said  ,  deceased,  to  issue  to  him, 

appointing  him  administrator  in  place  of  ,  late  administratrix  of  said 

,  deceased,  who  was  at  the  last  term  of  this  court  removed,  and  the 
letters  granted  to  her  repealed  (or  who  resigned,  or  died,  as  the  case  may  be). 
And  it  appearing  to  the  court  that  the  said  ,  late  administratrix  of 

the  estate  of  the  said  ,  deceased,  was  removed  by  this  court  on  the 

day  of  ,  A.  D.  18  (or  has  resigned,  as  the  case  may  be),  not 

having  fully  completed  the  administration  of  the  said  estate,  and  it  also 
appearing  that  the  said  is  competent,  and  by  law  entitled,  to  admin- 

ister upon  said  estate ;  it  is,  therefore, 

OKDERED  and  adjudged,  That  letters  of  administration  of  the  goods  and 
chattels,  rights  and  credits  which  were  of  the  said  ,  deceased,  at  the 

time  of  his  decease,  not  administered  by  the  said  ,  be  granted  to  the 

said  ,  upon  his  entering  into  bond  in  the  penal  sum  of  dollars, 

conditioned  and  payable  as  the  law  requires. 

And  now  again  comes  the  said  ,  and  presents  to  the  court  here, 

for  its  approval,  his  bond  as  administrator  of  the  estate  of  the  said  , 

deceased,  executed  by  said  as  principal,  and  as  security,  in 

form  and  substance  as  by  law  and  the  order  of  this  court  required  ;  and  the 
court  being  now  sufficiently  advised  touching  the  said  bond  and  the  said 
security,  it  is 

ORDERED  and  adjudged,  That  said  bond  and  security  be  approved;  and  it 
is  further 

ORDERED,  That  the  said  bond  be  filed  and  recorded  in  this  court. 

Slight  verbal  alterations  would  readily  adapt  the  form  to  the 
office  of  guardian. 

The  letters  issued  in  such  cases  are  to  be  varied  from  the  original 
to  suit  the  facts  of  each  particular  case,  (q) 

ORDER  ON  RETURN  OP  THE  APPRAISEMENT  BILL. 

In  the  matter  of  the ) 

estate  of  ,    j-  Order  on  Appraisement  Bill. 

deceased.  ) 

On  this  day  comes  ,  administrator  of  said  estate,  and  presents  to  the 

court  the  bill  of  the  appraisement  of  the  goods,  chattels  and  personal  estate, 
which  were  of  the  said  ,  deceased,  at  the  time  of  his  death,  and  the 

court  having  examined  the  same,  and  being  sufficiently  advised  concerning  said 
appraisement,  it  is 

ORDERED  by  the  court,  That  the  said  appraisement  be  approved ;  and  it  is 
further 

ORDERED  by  the  court,  That  the  said  bill  of  appraisement  be  filed  (and 
recorded). 

(q)  See  p.  79,  supra;  §  21,  R.  S.  1874,  p.  108. 
40 


314  THE   PKOBATE    KECORD.  [CH.  XIV. 


The  forms. 


ENTRY  ON  ADJUSTMENT  OP  CLAIMS. 

In  the  matter  of  the } 

estate  of  ,      [•  Adjustment  of  Claims. 

deceased.  ) 

On  this  day  comes  ,  administrator  of  said  estate  (or  executor  of  the 

last  will  and  testament,  etc.),  and  files  in  court  proof  of  the  publication  of 
notice  given  by  said  administrator,  appointing  this  day  for  the  settlement  and 
adjustment  of  claims  against  said  estate,  whereupon  the  following  described 
claims  were  presented,  and  the  court  being  advised  by  evidence  that  the  siiun- 
are  respectively  just  and  unpaid.it  is 

ORDERED,  That  the  said  claims  be  severally  allowed,  classified  and  paid,  as 
follows : 


NAMES. 

GLASS. 

AMOUNT. 

A  B  .. 

First                 

$60  00 

C  D  

Fourth  

19  00 

ENTRY  WHEN  ESTATE  IS  FOUND  TO  BE   INSOLVENT. 

In  the  matter  of  the ) 

estate  of  ,      >•  Insolvency. 

deceased.  ) 

And  now  on  this  day  comes  ,  administrator  of  said  estate,  and  files  in 

court  a  statement,  from  which  it  appears  that  the  claims  allowed  against  said 
estate  and  unpaid,  amount  to  the  sum  of  dollars,  and  that  the  whole 

amount  of  property,  rights  and  credits  belonging  to  said  estate  is  dol- 

lars, and  the  court  being  now  sufficiently  advised  concerning  the  condition  of 
said  estate,  and  it  appearing  that  the  same  is  not  solvent,  and  that  there  are 
not  sufficient  assets  with  which  to  pay  the  just  indebtedness  thereof,  it  is 

ORDERED,  That  the  said  estate  be  declared  insolvent,  and  be  so  entered  of 
record. 

ORDER  TO  COMPEL  EXECUTOR  OR  ADMINISTRATOR  TO   SELL  REAL   ESTATE. 

In  the  matter  of  the } 

estate  of  ,      >•  Order  to  Compel  the  Sale  of  Real  Estate. 

deceased.  ) 

On  this  day  comes  ,  a  creditor  of  said  estate,  and  moves  the  court  for 

an  order  that  ,  the  administrator  of  said  estate,  make  immediate  appli- 

cation to  the  circuit  or  county  court,  for  the  sale  of  the  real  estate  of  which  the 
said  died  seized,  or  so  much  thereof  as  will  be  sufficient  to  pay  the  just 

debts  of  the  said  estate,  and  the  court  being  now  sufficiently  advised  concern- 
ing said  motion,  and  it  appearing  to  the  court  that  the  personal  property  belong- 
ing to  said  estate  is  insufficient  to  pay  the  debts  thereof,  it  is 

ORDERED,  That  the  said  administrator  make  immediate  application  to  the 
court  for  license  to  sell  so  much  of  the  real  estate  of  which  said  died 

seized,  as  will  be  sufficient  to  pay  the  debts  of  said  estate. 


CH.  XIV.]  THE   PROBATE    RECORD.  315 


The  forms. 


DECREE  FOB  THE  SALE  OP  REAL  ESTATE. 

A.  B.,  Administrator  of  the  estate  of  C.  D.,    } 

/       In  the  County  Court  of  County. 

vs.  V 

M.B.,W.B.,C.B.,andD.B.  )  Term,  A.D.  18    . 

This  cause  coming  on  to  be  heard  upon  the  petition  of  A.  B.,  administrator  of  the  estate 
of  C.  D.,  asking  for  leave  to  sell  the  real  estate  of  said  decedent  described  therein,  or  such 
portion  thereof  as  may  be  necessary  to  satisfy  the  indebtedness  of  said  decedent  and  the 
expenses  of  administration,  as  well  as  upon  the  answers  of  M.  B.,  and  W.  B.,  and  the  replica- 
tion of  A.  B.,  administrator  as  aforesaid,  thereto.  [If  the  facts  require  it,  add  the  recitals 
somewhat  as  follows  :  And  it  now  appearing  to  the  court  that  C.  B.  has  been  summoned  and 
failed  to  appear,  and  that  D.  B.  is  a  non-resident  of  this  State,  and  that  publication  has 
been  made  in  the  ,  a  newspaper  published  in  said  county,  once  in  each  week 

for  four  successive  weeks,  containing  a  notice*  of  the  filing  of  the  petition,  the  names  of  the 
parties  thereto,  the  title  of  the  court,  and  the  time  and  place  of  the  return  of  the  summons 
in  the  case,  and  a  description  of  the  premises  described  in  said  petition,  the  first  publication 
having  been  made  in  the  paper  dated  the  day  of  ,  A.D.  18  ,  and  the  last  publi- 

cation in  the  paper  dated  the  day  of  ,  A.D.  18    ,  and  that  a  copy  of  said  notice 

was,  within  ten  days  of  the  first  publication  of  said  notice,  and  on  the  day  of  , 

A.D.  18    ,  sent  by  mail,  addressed  to  the  said  D.  B.,  at  ,  his  place  of  residence;  and  the 

said  C.  B.  and  D.  B.  having  failed  to  appear,  and  forty  days  having  already  intervened  be- 
tween the  first  publication  as  aforesaid  and  the  first  day  of  the  term,  A.D.  18  ,  of 
this  court,  and  defaults  having  at  said  term  been  taken  against  the  said  C.  B.  and  D.  B.,  and 
decree  pro  confesso  ordered  against  them  herein  respectively.]  And  upon  the  issues  formed 
or  taken,  the  court  having  heard  and  examined  the  allegations  and  proofs  of  the  parties 
herein  (and  after  argument  by  counsel  for  the  respective  parties)  it  further  appearing  to  the 
satisfaction  of  the  court,  upon  due  examination  as  aforesaid,  that  the  said  A.  B.,  administrator 
as  aforesaid,  has  made  a  just  and  true  account  of  the  condition  of  the  estate,  and  that  the 
personal  estate  of  the  decedent  is  not  sufficient,  as  it  now  appears,  by  the  sum  of 
dollars,  to  pay  the  debts  against  such  estate;  and  it  further  appearing  that  all  the  allega- 
tions of  said  petition  are  true  in  fact;  now,  therefore,  it  is  hereby 

DECREED,  ORDERED  and  adjudged  by  the  court,  That  the  said  administrator  have  leave, 
and  be  authorized  to  sell  the  following  described  real  estate,  situate  in  the  said  county  of 
,  and  State  of  Illinois,  to  wit :  ,  or  BO  much  thereof  as  may  be 

necessary  to  pay  the  debts  of  the  said  estate;  and  it  is  further 

ORDERED  and  adjudged  by  the  court,  That  the  said  administrator  sell  the  said  land  on  the 
day  of  next,  at  the  hour  of       o'clock  p.  M.  of  said  day,  on  the  premises,  the 

said  administrator  having  first  given  notice  of  such  intended  sale  according  to  the  require- 
ments of  the  law,  and  that  in  case  the  said  administrator  should  deem  it  best  for  the  interest 
of  paid  estate,  he  may  postpone  the  said  sale  to  such  other  day  as  he  may  appoirt,  always 
giving  notice  of  such  postponed  £  ale  the  same  as  in  the  first  instance  ;  and  it  is  further 

ORDERED,  That  said  land  be  sold  on  the  following  terms  :  cash  in  hand, 

in  mouths,  and  the  balance  in  months,  each  with  interest,  the  purchaser  to  give 

a  mortgage  on  the  premises,  with  approved  personal  security;  and  that  said  administrator 
report  his  acts  and  doings  herein  to  this  court,  and  that  this  application  be,  for  that  purpose, 
continued  to  the  next  term  of  this  court. 

ADMINISTRATOK'8  SALE. 

In  the  estate  of  ,  deceased.    By  virtue  of  a  decretal  order  of  the  county 

court  of  county,  Illinois,  entered  of  record  on  the          day  of  ,  18    , 

*  This  notice  being  jurisdictional,  it  is  of  the  greatest  importance  that  it  be  properly  givec 
and  accurately  recited.  Sotxford  v.  0' Conner,  57111.  72.  Donlin  v.  Hettinger,  id.  348.  See 
PI-.  i>2,  63,  193-307,  supra. 


316  THE   PEOBATE   EECOED.  [CH.  XIV. 

The  forms. 

we  will  sell  at  public  auction  to  the  highest  and  best  bidder,  on  the  day 

of  ,  18    ,  at  the  hour  of  o'clock  A.  M.,  on  the  premises  designated 

as,  in  the        of  ,  in  said  State,  the  following  described  real  estate  of  said 

deceased,  to  wit :  ,  in  the  county  of  ,  and  State  of  Illinois.     Subject  to 

a  mortgage  of  $        .     Terms  of  sale,  half  cash,  and  half  in  months,  with 

approved  security,  with  interest  at  8  per  cent  per  annum. 

,  Administratrix,  and 
,  Administrator  of  deceased's  estate. 
Dated,  18    . 

ORDER  CONFIRMING  SALE  OF  REAL  ESTATE. 

Title  as  in  the ) 

decree,  Order  Confirming  Sale  of  Meal  Estate. 

p.  307,  supra,  j 

And  now  on  this  day  comes  ,  administrator  of  the  said  estate,  and 

presents  to  the  court  a  report  of  his  acts  and  doings  under  the  leave  of  this 
court,  to  sell  the  real  estate  of  which  said  died  seized,  and  the  court  having 
examined  said  report,  and  it  appearing  that  said  administrator  caused  proper 
notice  of  the  time  and  place  of  said  sale  to  be  published  and  posted,  as  by  law 
and  the  order  of  this  court  required ;  that,  in  pursuance  of  said  order  and 
notices  he  did,  on  the  day  of  ,  A.  D.  18  ,  at  o'clock  in  the 

afternoon  of  said  day,  on  the  premises,  sell  said  real  estate,  in  said  order  de- 
scribed, at  public  sale  to  one  C  D,  for  the  sum  of  dollars,  and  that  said 
C  D  did  thereupon  comply  with  the  terms  of  said  sale,  and  the  said  adminis- 
trator having  thereupon  made  a  deed  of  conveyance  of  the  said  land  to  the  said 
C  D,  which  is  now  shown  to  the  court  for  approval,  and  the  court  being  now 
fully  advised  touching  said  sale,  it  is 

ORDERED  and  adjudged  by  the  court,  That  the  said  acts  and  doings  of  the 
said  administrator,  in  and  about  said  sale  be  approved,  and  said  sale  confirmed, 
and  that  the  deed  so  made  by  him  be  approved,  and  that  he  deliver  the  same 
to  the  said  C  D. 

ORDER  APPOINTING  A  GUARDIAN. 

In  the  matter  of  ) 

the  guardian-  v  Appointment  of  Guardian. 

ship  of  .  ) 

On  this  day  comes  ,  and  represents  to  the  court  that  ,  of 

the  said  county  of  ,  is  an  orphan  minor,  of  the  age  of  years,  has  no 

father  living,  arid  is  without  a  guardian  in  this  State  ;  and  prays  the  court  that 
he  be  appointed  guardian  of  the  said  minor ;  and  it  appearing  to  the  court  that 
said  is  an  orphan  minor,  as  represented,  and  that  said  is  the 

of  said  minor,  and  a  suitable  person  to  have  the  custody,  education  and 
maintenance  of  said  minor,  it  is 

ORDERED,  That  said  be  appointed  guardian  of  the  person  and  estate 

of  the  said  ,  upon  his  entering  into  bond,  with  security,  as  the  law 

directs,  in  the  penal  sum  of  dollars. 

And  now  again  comes  the  said  ,  and  presents  to  the  court  his  bond 


3H.  XIV.]  THE   PROBATE   RECORD.  317 

The  forms. 

as  guardian  of  said  ,  with  A  B  and  C  D  as  his  securities  thereon ; 

and  the  court  being  now  sufficiently  advised  concerning  said  bond  and  the 
said  securities,  it  is 

ORDERED,  That  the  same  be  approved  and  filed ;  and  it  is  further 

ORDERED,  That  letters  of  guardianship  issue  to  said 

Where  the  minor  is  fourteen  years  of  age,  or  upward,  omit  "  prays 
the  court  that  he  may  be  appointed  guardian,"  etc.,  and  insert, 
"  and  it  appearing  to  the  court  that  the  said  is  of  the  age  of 

fourteen  years  and  upward,  and  the  said  minor  being  present  in  open 
court,  chooses  for  his  guardian  the  said  ." 

These  forms  and  entries  might  be  indefinitely  extended,  so  as  to 
embrace  the  almost  endless  variety  of  cases  that  come  before  the 
probate  courts,  but  those  already  given  will  abundantly  show  the 
manner  in  which  such  papers  should  be  drawn,  and  how  the  record 
is  to  be  made. 

PROOF  OF  DEATH  OF  TESTATOR. 

STATE  OF  ILLINOIS,) 

County.        f  w 

,  of  said  county,  being  first  duly  sworn,  says  that  ,  late 

of  said  county,  died  on  or  about  the        day  of  ,  A.  D.  18     ,  at  the  said 

county,  leaving,  at  the  time  of  his  decease,  property  and  effects  therein,  and 
also  an  instrument  in  writing  which  affiant  believes  to  be  his  last  will  and 
testament,  which  paper  writing  he  now  produces  to  the  court  for  probate. 

,  County  Glerk. 

Subscribed  and  sworn  to  before  me,  ) 
this        day  of  ,  A.  D.  18     .      ) 

SUBPOENA  TO  WITNESSES  TO  PROVE  EXECUTION  OF  A  WILL. 

STATE  OF  ILLINOIS,) 

County.       j  * 

The  People  of  the  State  of  Illinois  to  the  Sheriff  of  said  County,  greeting  : 

You  are  hereby  commanded  to  summon  E  F  and  Q  H,  if  to  be  found  in 
your  county,  to  be  and  appear  before  the  county  court  of  county,  on  the 

Monday  in  the  month  of  next,  at        o'clock  A.  M.,  of  said  day,  to 

testify  the  truth  in  a  certain  matter  depending  before  the  said  court,  touching 
the  proof,  execution  and  validity  of  the  last  will  and  testament  of 
late  of  said  county,  deceased,  and  such  other  matters  as  shall  then  and  there 
be  required  of  them,  relating  to  the  same  ;  and  this  they  are  not  to  omit  under 
penalty.    And  then  and  there  return  this  writ. 

r          -,  Witness  ,  clerk  of  said  court,  and  the  seal  thereof, 

at  ,  this        day  of  ,  A.  D.  18    . 

,  County  Clerk. 


318  THE   PROBATE   EECOED.  [CH.  XIV. 

The  forms. 


CLERK'S  CERTIFICATE  TO  COPY  OF  WILL,  LETTERS,  ETC. 

STATE  OF  ILLINOIS,! 

County,     f  ss 

I,  ,  clerk  of  the  county  court  of  said  county,  the  same  being  a  court 

of  record,  and  having  an  official  seal,  and  having  exclusive  original  jurisdiction 
of  all  matters,  probate  and  testamentary, in  said  county,  do  hereby  certify  that 
the  foregoing  annexed  papers  are  a  true,  full  and  correct  copy  of  the  original 
last  will  and  testament  of  ,  late  of  said  county,  deceased,  as  the  same 

was  admitted  to  probate  by  and  recorded  in  said  county  court,  and  of  the  letters 
testamentary  issued  thereon  ;  that  the  said  will  was  duly  proved  and  letters 
thereon  granted,  in  accordance  with  the  laws  of  the  State  of  Illinois,  and  that 
said  letters  remain  in  full  force. 

[SEAL.]  In  testimony  whereof,  etc. 

CITATION  FOR  ADMINISTRATORS,  EXECUTORS  AND  GUARDIANS. 

STATE  OF  ILLINOIS,  ) 

County,      j    s 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  of  said  County,  greeting : 

WHEREAS  (here  insert  the  particular  state  of  facts  upon  which  the  citation  was 
awarded}. 

You  are  therefore  hereby  commanded  that  you  cite  and  give  notice  to  the 
said  ,  as  aforesaid,  that  he  be  and  appear  before  our  county  court 

of  county,  at  a  special  term  thereof,  to  be  holden  at  the  court-house. 

or  usual  place  of  holding  courts,  in  ,  on  the  day  of  ,  A.  I). 

18         ,  then  and  there  to  answer  as  such  in  the  premises  ;  and  further 

to  do  and  perform  what  shall  then  by  our  said  court  be  required  and  adjudged. 
And  hereof  make  due  service  and  return  as  the  law  directs. 

Witness,  ,  clerk  of  said  county  court  for  the  county 

[SEAL.]  of  ,  at  his  office  in  ,  this  day  of  , 

A.  D.  18 

County  Clerk. 

CITATION  TO  ADMINISTRATOR  OR  EXECUTOR. 

STATE  OF  ILLINOIS,) 

County.     \  Si 

The  People  of  the  State  of  Illinois,  to  ,  administrator  of  , 


WHEREAS,  complaint  has  been  made  to  the  county  court  of  said  county,  by  one 
A  B,  because  you  have  [failed  to  file  an  inventory  of  the  estate  of  said  ,  de- 

ceased, within  three  months  from  the  date  of  your  letters  of  administration]:  You, 
the  said  administrator,  are  hereby  cited  to  appear  before  the  said  county  court  of 
county,  at  the  next  regular  term  thereof,  to  be  holden  at  the  court-house 
in  the  city  of  in  said  county,  on  the  Monday  of  ,  A.  D.  18 

[to  show  cause  why  you  should  not  file  such  inventory.] 

[SEAL.]  In  witness  whereof,  etc. 


CH.  XIV.]  THE   PKOBATE    RECOKD.  319 

The  forms. 

A  variety  of  citations  may  be  constructed  by  omitting  what  is  iu 
brackets  and  inserting  in  lieu  thereof  whatever  may  be  required  for 
any  different  state  of  facts. 

WAIVER  OF  DOWER  BY  A  WIDOW  ACCEPTING  A  PROVISION  IN  THE  WILL  IN  HER 

BEHALF. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  whereas,  my  late  husband,  , 

deceased,  late  of  the  county  of  ,  in  the  State  of  Illinois,  in  and  by  his 

last  will  and  testament  probated  in  said  county,  provided  as  follows :  (Here  in- 
sert a  copy  of  the  provision  made  in  the  will,  which  the  widow  may  accept  in  lieu 
of  dower.}  I,  the  said  ,  in  consideration  thereof,  accept  the  said  provis- 

ion, so  made  and  expressed,  to  be  in  lieu  of  my  dower  in  the  real  estate  of  which 
the  said  died  seized,  and  acknowledge  the  same  now  paid  to  me  by 

executor  of  the  said  last  will  and  testament  of  said  ,  deceased,  to  be  in 

full  satisfaction  of  all  my  right  and  claim  of  dower,  which  I  might  otherwise 
have  been  entitled  to,  in  the  real  estate  which  was  of  the  said  ,  deceased, 

during  our  coverture,  and  by  these  presents  do  release,  renounce  and  discharge 
all  my  right  and  claim  of  dower,  of,  in  and  to  all  such  estate. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this  day  of 

,  A.  D.  18    .  .        [SEAL.] 

RENUNCIATION   OF   PROVISION   IN   A   WILL   IN  LIEU   OF   DOWER. 

WHEREAS,  ,  late  of  the  county  of  ,  in  the  State  of  Illinois,  in 

and  by  his  last  will  and  testament,  proved  in  the  county  court  of  said  county, 
made  the  following  provision  for  the  undersigned  in  lieu  of  dower,  to  wit :  (Here 
inxt-rt  copy  of  such  provision,)  which  said  provision  so  made,  I,  ,  widow 

of  the  said  ,  deceased,  of  said  county,  do  not  accept  in  lieu  of  my  dower 

interest  in  the  estate  left  by  said  ,  but  hereby  renounce  the  said  provis- 

ion, aud  shall  and  do  insist  upon  my  right  and  claim  of  dower,  in  the  estate  of 
the  said  ,  deceased,  to  which  I  may  be  legally  and  justly  entitled,  not- 

withstanding any  provision  in  the  said  will  to  the  contrary  ;  and  I  desire  that 
this  my  renunciation  be  entered  of  record. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this  day 

of  ,  A.  D. 

.    [SEAL.] 

FORM  OF  APPRENTICE'S  INDENTURE. 

THIS  INDENTURE,  made  this  day  of  ,  A.  D.  18        ,  WITNESSETH, 

That  ,  now  of  the  age  of  ,  on  the  day  of  ,  A.  D. 

18  ,  hath  put  himself,  and  by  these  presents,  by  and  with  the  approbation 
of  the  judge  of  the  county  court  of  county,  Illinois,  doth  voluntarily, 

and  of  his  own  free  will  and  accord,  put  himself  apprentice  to  of  the 

county  of  ,  and  after  the  manner  of  an  apprentice  to  serve  from  the 

day  of  the  date  hereof,  for  and  during  and  until  the  end  and  term  of 
years,  or  until  the  day  of  ,  A.  D.  18 

During  all  of  which  time  the  said  his  master  shall  faithfully  serve, 

his  secrets  keep,  and  his  lawful  commands  everywhere  obey.     He  shall  do  no 


320  THE  PROBATE   EECOED.  [CH.  XIV. 


The  forms. 


damage  to  his  said  master,  nor  see  it  done  by  others  without  giving  notice  thereof 
to  his  said  master ;  he  must  not  contract  matrimony  within  the  said  term ;  he 
shall  not  waste  his  master's  goods,  nor  lend  them  unlawfully  to  any  ;  at  cards, 
dice,  or  any  unlawful  game  he  shall  not  play,  whereby  his  said  master  shall 
have  damage ;  he  shall  not  absent  himself  night  or  day  without  his  leave,  but 
in  all  things  behave  himself  as  a  faithful  apprentice  ought  to  do. 

And  the  said  master  agrees,  to  the  utmost  of  his  power,  to  procure  and  pro- 
vide for  the  said  apprentice  during  said  term  of  years,  or  until  the  said 
shall  attain  the  age  of  years.  And  shall  cause  said  to 
be  taught  to  read  and  write,  and  the  ground  rules  of  arithmetic ;  and  shall  also, 
at  the  expiration  of  said  term  of  service,  give  to  said  a  new  bible  and 
two  new  suits  of  complete  wearing  apparel,  suitable  to  his  condition  in  life ; 
and  shall  also,  during  the  continuance  of  said  term  of  service,  according  to  the 
best  of  his  endeavors,  find  his  said  apprentice  with  sufficient  wearing  apparel, 
washing  and  mending,  suitable  and  fit  for  an  apprentice  to  wear. 

And  for  the  true  performance  of  all  and  singular  the  covenants  and  agree- 
ments aforesaid,  the  said  binds  himself  unto  the  said  firmly 
by  these  presents. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands  and  seals, 
the  day  and  year  first  above  written. 

Witness,  ,    [SEAL.] 

,    [SEAL.] 

LETTERS  OF  GUARDIANSHIP. 
STATE  OP  ILLINOIS,) 

County.        J  8* 

The  People  of  the  State  of  Illinois,  to  ,  greeting : 

WHEREAS,  At  the  county  court,  holden  in  and  for  said  county,  at  ,  on 

the        day  of  ,  A.  D.  18     ,  you  were  duly  appointed  by  said  court  guar- 

dian for  ,  minor    ,  aged  as  follows  :    (Here  insert  ages.} 

Trusting  in  your  fidelity,  therefore,  the  said  court  do  by  these  presents 
allow,  constitute  and  appoint  you,  the  said  ,  to  be  guardian  unto  said 

minor     ,  and  authorize  and  empower  you  to  take  and  have  the  care  of 
person,  and  the  custody  and  management  of  property,  frugally,  and 

without  waste  or  destruction,  to  improve  and  account  for  the  same  in  all  things 

according  to  law. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
[SEAL.]  the  seal  of  said  county  court,  at  my  office  in  ,  this 

day  of  ,  A.  D.  18     . 

,  County  Clerk  . 

EXECUTION   FOR  COSTS.* 

B  A        ) 

v.  >  Defendant's  Costs. 

C  D.         } 
To  amount  of  clerk's  fees,  as  follows  :     (Here  insert  copy  from  fee  book.) 

I,  A  B,  clerk  of  the  county  court  of  said  county,  do  hereby  certify  that  the 
above  is  a  true  copy  of  defendant's  costs,  as  appears  on  my  fee  book. 

A  B,  County  Clerk. 

*  See  Whitehurst  v.  Coleen,  53  111.  247;  2  Hill's  C.  L.  635  ;  Rowan  v.  Kirkpatrick,  14  111. 
1 ;  pp.  294-300,  supra. 


CH.  XIV.]  THE   PROBATE   EECOED.  321 

The  forms. 

STATE  OF  ILLINOIS,) 

County.        f  ™ 

The  People  of  the  State  of  Illinois  to  the  Sheriff  of  said  County,  greeting  : 

We  command  you  that,  if  the  above  fee  bill,  amounting  to  dollars,  shall 
not  be  paid  within  thirty  days  after  being  by  you  demanded,  you  cause  the 
same  to  be  made  of  the  goods  and  chattels,  lands  and  tenements  of  the  said 
,  in  your  county,  according  to  the  statute  in  such  case  made  and 
provided,  and  make  return  hereof  within  ninety  days,  in  what  manner  you 
shall  have  executed  the  same. 

Witness,  A  B,  clerk  of  the  county  court  of  said  county,  and 
[SEAL.]  the  geal  thereof>  at          f  thia       day  of          ,  18    . 

A  B,  Clerk. 
COMMISSION  TO  TAKE  DEPOSITION  OF  NON-RESIDENT  WITNESS. 

STATE  OF  ILLINOIS,) 

County.        f  " 

The  People  of  the  State  of  Illinois  to  (here  insert  the  name  of  person  who  is  to 
take  the  deposition). 

WHEREAS,  It  has  been  represented  to  us  that  (here  insert  the  names  of  the 
witnesses)  —  material  witnesses  in  a  certain  cause  now  depending  in  our  county 
court,  in  and  for  the  county  of  aforesaid,  between  ,  plaintiff, 

and  ,  defendant,  (or  touching  the  proof  of  the  execution  and  validity 

of  the  will  of  (as  the  case  may  be),  and  that  the  said  witnesses  reside 

at  aforesaid,  without  the  said  State  of  Illinois,  and  that  per- 

sonal attendance  cannot  be  procured  at  the  trial  of  the  said  cause.  Now, 
know  ye,  that  we,  in  confidence  of  your  prudence  and  fidelity,  have  appointed 
you  commissioner  to  examine  the  said  witnesses,  and  do,  therefore,  authorize 
and  require  you  to  cause  the  said  witnesses  to  come  before  you,  at  such  time 
and  place  as  you  may  therefor  designate  and  appoint,  and  diligently  to  examine 
the  said  witnesses,  on  the  oath  or  affirmation  of  the  said  witnesses,  by  you  first 
duly  in  that  behalf  administered,  and  faithfully  to  take  the  deposition  of  the 
said  witnesses  upon  all  interrogatories  inclosed  with  or  attached  to  these 
presents,  both  on  the  part  of  the  said  plaintiff  and  of  the  said  defendant,  and 
none  others  ;  and  the  same,  when  thus  taken,  together  with  this  commission, 
and  the  said  interrogatories,  to  certify  into  our  said  county  court  with  the  least 
possible  delay. 

Witness,  ,  clerk  of  our  said  court,  and  seal  thereof, 

at  ,  in  said  county,  this        day  of  ,  A.D.  18    . 

,  Clerk. 

Attach  to  the  dedimus  potestatum  instructions  as  to  the  manner 
of  taking  and  returning  depositions,  (r) 

When  the  sale  is  made,  the  purchaser  is  entitled  to  a  deed  from 
the  administrator ;  and,  if  the  land  be  sold  on  a  credit,  the  pur- 

(r)  See  p.  34,  supra. 
41 


322  THE   PROBATE   RECORD.  [CH.  XIV 


The  forms. 


chaser  is  required  to  give  bond  (or  note),  with  good  security,  and  u 
mortgage. on  the  premises  sold.  By  "  good  security  "  is  meant  such 
personal  security  as  the  administrator  may,  in  a  reasonable  exercise 
of  his  judgment,  approve.  If  a  person  whose  bid  has  been  received 
tender  unquestionable  security,  and  a  proper  mortgage  on  the  prem- 
ises, the  administrator  has  no  right  to  refuse  it,  out  of  mere  caprice. 
The  deed  may  be  as  follows : 

DEED  BY  AN  ADMINISTRATOR,  UNDER  A  DECREE  OF  COURT. 
To  All  to  whom  these  Presents  shall  come : 

A  B,  of  ,  in  the  county  of  ,  and  State  of  Illinois,  administrator  of 

the  goods  and  estate  which  were  of  C  D,  late  of  the  said  county,  deceased, 
intestate,  sends  greeting : 

WHEREAS,  at  the  term  of  the  circuit  court  of  the  said  county  of 

and  State  aforesaid,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
,  in  the  matter  of  the  petition  of  A  B,  administrator  as  aforesaid,  for 
leave  to  sell  the  following  described  real  estate,  situated  in  the  county  of 
and  State  of  Illinois,  to  wit :  (here  describe  the  land),  it  was  ordered  and  decreed 
by  said  court,  in  chancery  sitting,  in  the  words  following,  to  wit :  (here  set 
forth  the  order  and  decree  at  large) ;  and  whereas,  in  pursuance  of  said  order 
and  decree,  I  did  proceed  to  sell  the  premises  aforesaid,  after  having  given 
the  notice  aforesaid,  on  the  day  and  between  the  hours  aforesaid,  at  the  place 
aforesaid,  at  public  vendue,  and  the  said  premises  were  struck  off  to  E  F,  of 
said  ,  he  being  the  highest  and  best  bidder  therefor,  for  the  sum  of 

dollars : 

Now,  therefore,  know  ye  that  I,  the  said  A  B,  administrator  as  aforesaid,  by 
virtue  of  the  order  and  decree  aforesaid,  and  in  consideration  of  the  sum 
of  dollars,  to  me  paid  by  the  said  E  F,  the  receipt  whereof  I  do 

hereby  acknowledge,  do  hereby  grant,  sell  and  convey  unto  the  said  E 
F,  his  heirs  and  assigns,  all  that  tract  and  parcel  of  land  situated  in  the 
county  of  ,  to  wit :  (here  describe  the  land ) :  To  have  and  to  hold 

the  said  premises  unto  the  said  E  F,  his  heirs  and  assigns,  to  his  and 
their  behoof  forever.  And  I,  the  said  A  B,  administrator  as  aforesaid,  do 
hereby  covenant  with  the  said  E  F,  his  heirs  and  assigns,  that  I  have  in  all 
respects  complied  with  the  order  and  decree  of  said  circuit  court,  and  with  the 
directions  of  the  law  generally,  in  such  case  made  and  provided. 

In  witness  whereof,  I,  the  said  A  B,  in  my  said  capacity  of  administrator, 
have  hereunto  set  my  hand  and  seal,  this  first  day  of  ,  A.  D.  18  . 

A  B.     [L.  s.] 

Signed,  sealed  and  delivered  in ) 
presence  of  \ 

After  completing  the  sale,  the  administrator  should  report  to  the 
court  and  obtain  a  confirmation  thereof. 


CH.  XIV.]  THE   PEOBATE   EECOED.  323 

The  forms. 


REPORT. 

STATE  OF  ILLINOIS,)  County  Court  of  County, 

County.     \s&  Term,  IS    . 

To  Hon.  ,  Judge  of  said  Court : 

In  the  matter  of  the  application  of  ,  administrator  of  ,  deceased, 

to  sell  real  estate. 

The  said  administrator,  charged  with  the  execution  of  the  order  of  sale 
entered  in  said  cause  at  the  last  term  of  this  court,  would  respect- 

fully submit  the  following  report  of  his  acts  and  doings  under  said  order  : 

That  in  pursuance  of  said  order  of  sale,  he  did,  on  the  day  of  , 

A.  D.  18  ,  put  up  notices  of  the  sale  of  said  real  estate,  in  said  order  directed 
to  be  sold,  in  four  of  the  most  public  places  in  the  said  county  of  ,  to  wit : 

one  at  the   court-house,  one  at  the  post-office  in  ,  etc.,  a  copy  of  which 

notice,  with  proof  of  such  posting,  is  hereto  attached;  that  he  caused  a  similar 
notice  to  be  published  in  the  ,  a  weekly  paper,  published  at  ,  in 

said  county,  for  four  successive  weeks  prior  to  said  sale,  a  copy  of  which  adver- 
tisement, with  the  publisher's  certificate  of  the  due  publication  thereof,  is  also 
hereto  attached. 

That  in  pursuance  of  said  order  of  sale,  and  the  said  notice,  he  did,  at  the 
time  and  place  mentioned  in  such  notice,  sell  at  public  sale  the  said  real  estate 
in  the  said  order  directed  to  be  sold,  to  C  D,  of  ,  aforesaid,  for  the  sum  of 

four  thousand  dollars,  his  being  the  highest  and  best  bid  therefor,  on  a  credit 
of  months.  That  thereupon  the  said  C  D  having  complied  with  the  terms 

of  said  sale,  by  giving  his  note,  with  good  approved  personal  security,  and  a 
mortgage  upon  the  said  premises,  the  undersigned  executed  to  said  C  D  a  deed 
of  the  said  premises,  and  delivered  the  same  to  him. 

All  of  which  is  respectfully  submitted,  and  an  order  confirming  all  the  said 
acts  and  doings  is  hereby  prayed  for. 

,  Administrator  of  ,  deceased. 

The  lands  affected  are  to  be  described  in  the  notices  with  legal 
certainty. 

Notices  should  be  posted  up  at  least  four  weeks  before  the  time  of 
sale,  and  a  similar  notice  published  in  such  newspapers  four  weeks 
successively.  Copies  of  the  notices  should  be  preserved  by  the  per- 
son posting  them,  and  his  affidavit  of  the  time  when  and  the  places 
where  he  posted  them,  indorsed  upon  each,  and  filed  in  the  court 
making  the  order.  A  copy  of  the  newspaper  notice,  with  the 
publisher's  certificate  of  publication,  should  likewise  be  filed,  and 
both  attached  to  and  returned  to  court  with  the  report  of  the  sale 
made  by  the  administrator  for  an  order  confirming  the  sale.* 

NOTICE   OF   SALE. 

Notice  of  Administrator's  Sale. 
By  virtue  of  an  order  and  decree  of  the  court  of        county,  Illinois, 

*  See  page  200,  supra.  Also  ch.  3,  §  109,  K.  8.,  as  amended  April  7,  1875,  Laws  of  1875, 
p.  1 .  Cothran's  Stats.,  p.  76  :  Marshall  v.  Rose,  Adm'x.,  86  111.  374  ;  Allen  v.  Shepard,  87 
111.  31i  ;  KMovv  v.  Wilson,  89  111.  357. 


324:  THE    PROBATE   RECORD.  [CH.  XIV. 

The  forms. 

made  on  the  petition  of  the  undersigned,  administrator  of  the  estate  of  , 

deceased,  for  leave  to  sell  the  real  estate  of  said  deceased,  at  the  last  December 
term  of  said  court,  to  wit,  on  the  3d  day  of  December,  18  ,  I  shall,  on  the  2d 
day  of  April  next,  between  the  hours  of  10  o'clock,  A.  M.,  and  4  o'clock,  p.  M., 
of  said  day,  sell  at  public  sale,  on  the  premises,  the  following  described  real 
estate,  situate  in  the  county  of  ,  and  State  of  Illinois,  to  wit :  ,  more 

or  less,  on  a  of  months,  the  purchaser  to  give  approved  personal  security, 
and  a  mortgage  on  the  premises  sold,  to  secure  the  payment  of  the  purchase- 
money. 

,  Administrator  of  ,  deceased. 

Dated  ,  18    . 

The  sale  is  to  be  public,  i.  e.,  at  auction.  If  there  are  several  tracts 
of  land  to  be  sold,  each  is  to  be  put  up  separately;  a  sale  en  masse 
would  not  be  authorized.  A  sale  made  before  10  o'clock,  A.  M.,  or 
after  5  o'clock,  p.  M.,  of  the  day,  would  be  void.* 

The  order  should  generally  provide  for,  and  the  mode  of,  a  post- 
ponement of  the  sale;  where  it  fails  to  do  so,  and  fixes  the  day  of 
sale,  if  there  be  no  bidders,  or  the  administrator  deem  it  best  for 
the  interest  of  the  estate,  he  may  refuse  to  put  it  up,  but  cannot 
continue  it.  He  must  again  apply  to  the  court  for  a  new  order, 
fixing  another  day  of  sale.  If  an  administrator  sell  the  land  contrary 
to  the  provisions  of  the  law,  he  is  liable  to  forfeit  and  pay  five  hun- 
dred dollars,  for  the  use  of  any  person  interested. 

RENUNCIATION 

STATE  OP  ILLINOIS,  )  In  the  County  Court  of  Oounty, 

County,      \ ss  of  the  term,  A.  D.  18    . 

In  the  matter  of  the  estate  of  \ 

A  B,  deceased,  leaving  a  last  >• 

will  and  testament.  ) 

WHEREAS,  A  B,  late  of  ,  deceased,  died  on  tiie  day  of  , 

18    ,  at  ,  having  made  and   duly  executed  his  last  will  and  testament, 

being  the  day   of  18    ,  and  thereof   appointed    me  the    under- 

signed sole  executor. 

Now  I,  the  said  C  D,  do  hereby  declare  that  I  have  not  intermeddled  in  the 
personal  estate  and  effects  of  the  said  testator,  and  will  not  hereafter  inter- 
meddle therein,  and  I  do  hereby  renounce  all  my  right  and  title  to  the  probate 
and  execution  of  the  said  will.  C  D. 

Signed  by  the  said  C  D,  this  day  of  | 

,18    ,  in  the  presence  of  f 

(Signed.) 

RENUNCIATION  OF  THE  RIGHT  TO  ADMINISTER. 

STATE  OF  ILLINOIS,  |  In  the  County  Court  of          County, 

County,     <j  of  the  term,  A.  D.  18    . 

In  the  matter  of  the  estate  of  \_ 
A  B,  deceased,  intestate.     ) 

WHEREAS,  A  B,  late  of  in  the  county  of  ,  deceased,  died  on  the 

*  See  page  200,  supra.    Also  Cothran's  Stats.,  p.  76,  and  cases  cited. 


CH.  XIV.]  THE   PKOBATE   RECORD.  325 

The  forms. 

day  of  ,  18    ,  at  ,  intestate,  a  widower  ;  and  whereas,  I,  C  D,  am 

his  natural  and  lawful  and  only  child. 

Now,  I,  the  said  C  D,  do  hereby  renounce  all  my  right  and  title  to  the  letters 
of  administration  of  the  personal  estate  and  effects  of  the  said  A  B,  deceased. 
Signed  by  the  said  C  D,  this  day  of  )  CD. 

,  A.  D.,  in  the  presence  of  .  y 

(Signed.) 

The  foregoing  form,  at  page  226,  supra,  may  be  used  by  a  distributee 
by  a  slight  alteration,  substituting  "  administrator,"  etc.,  for  "  exec- 
utor," etc.,  and  "  distributee  "  for  "  legatee." 

"When  a  legacy  is  given  to  a  married  woman,  the  husband  should 
execute  the  bond  for  her,  or  with  her,  in  addition  to  the  security. 
In  case  the  legatee,  after  being  ordered  to  refund,  shall  neglect  to  do 
so  within  sixty  days  thereafter,  it  works  a  breach  of  the  bond.  In 
case  there  is  no  bond  taken,  an  action  of  debt  may  be  maintained 
against  such  legatee  or  distributee,  for  his  share  ordered  to  be 
refunded. 

DEED  BY  AN  EXECUTOR  UNDER  AN  AUTHORITY  IN  A  WILL. 

To  all  persons  to  wJiom  these  presents  shall  come  : 

A  B,  of  the  county  of  ,  and  State  of  Illinois,  executor  of  the  last  will 

and  testament  of  C  D,  late  of  said  county,  deceased,  testate,  sends  greeting  : 

WHEREAS  the  said  C  D,  in  order  to  enable  his  said  executor  fully  to  carry 
into  effect  his  intentions,  did,  in  and  by  his  last  will  and  testament,  authorize 
and  empower  his  said  executor  (here  set  out  the  power,  in  the  language  of  the 


Now,  THEREFORE,  KNOW  YE,  That  I,  the  said  A  B,  executor  as  aforesaid,  by 
virtue  of  the  authority  to  me  given  by  the  said  C  D  in  the  said  last  will  and 
testament,  and  in  consideration  of  dollars,  to  me  paid  by  E  F,  of  the 

said  county  of  ,  the  receipt  whereof  I  do  hereby  acknowledge,  do 

hereby  grant,  bargain,  sell,  and  convey  to  the  said  E  F,  his  heirs  and  assigns, 
all  that  tract  or  parcel  of  land  situate  in  the  county  of  ,  and  known 

and  described  as  follows,  to  wit  :  ,  containing  acres  of  land,  be 

the  same  more  or  less. 

To  have  and  to  hold  the  said  premises,  to  him  the  said  E  F,  his 
heirs  and  assigns,  to  his  and  their  use  and  behoof  forever.  And  I,  the  said 
A  B,  covenant  with  the  said  E  F.  his  heirs  and  assigns,  that  I  am  lawfully 
the  executor  of  said  last  will  and  testament,  and  that  I  have  not  made  or 
suffered  any  incumbrance  in  said  premises,  since  I  was  appointed  executor  of 
the  said  C  D  ;  and  that  I  have,  in  all  respects,  in  making  this  conveyance, 
acted  in  strict  pursuance  of  the  authority  granted  to  me  in  and  by  said  last 
will  and  testament  of  the  said  C  D. 

In  witness  whereof,  I,  the  said  A  B,  in  my  said  capacity  of  executor  of  the 


326  THE   PROBATE   RECORD.  [CH.  XIV. 


The  forms. 


said  C  D,  have  hereunto  set  my  hand  and  seal,  this  day  of  ,  A.  D 

18    . 

A  B.    [SEAL.] 

Signed,  sealed,  and  delivered  ) 
in  presence  of  J 

Upon  discovering  the  insolvency  of  the  estate  it  is  the  duty  of  the 
administrator  to  take  immediate  steps  to  convert  the  real  property  into 
assets  for  the  benefit  of  the  creditors.  Should  he  neglect  to  do  so, 
the  county  court  may  coerce  him  to  make  such  application. 

The  statute  does  not  prescribe  the  mode  of  such  coercion.  The 
usual  practice  in  such  cases  is,  a  motion  to  the  court,  setting  forth 
the  interest  of  the  party  applying  to  the  court,  the  fact  of  insolvency, 
and  that  there  is  real  estate  of  the  intestate,  the  neglect  of  the 
administrator  to  take  steps  under  the  statute  to  have  the  real  estate 
sold,  and  reduced  to  assets  for  the  payment  of  the  debts.  An  affida- 
vit is  not  required  as  the  foundation  of  such  motion,  the  facts  are 
matter  of  record  in  the  court;  yet  if  put  in,  it  would  present  all  the 
necessary  facts  in  a  more  tangible  form. 

The  order  of  the  court,  compelling  the  executor  or  administrator 
to  sell  real  estate,  has  been  given.(s)  After  the  order  is  made, 
the  proceedings  for  sale  by  the  executor  or  administrator  are  as 
already  given,  in  the  case  of  his  voluntary  application  to  sell. 

The  court,  by  the  "  account  and  report,"  is  advised  of  the  extent 
of  the  deficiency;  it  should  also  be  advised  of  the  value  of  the  land 
sought  to  be  converted  into  assets  to  meet  such  deficit,  so  as  to 
determine  whether  it  is  necessary  to  sell  the  whole,  or  only  a  part  of 
it  ;  the  situation  of  the  estate  should  also  be  shown,  that  the  court 
may  know  whether  it  would  be  prejudicial  to  the  interest  of  the 
heirs  to  sell  a  part  instead  of  the  whole.  This  evidence  is  generally 
the  testimony  of  witnesses  acquainted  with  the  property.  The 
administrator  may  himself  be  a  witness. 

PROCEEDINGS  SUBSEQUENT  TO  THE  ORDER.  After  the  order  has 
been  obtained  by  the  administrator  to  sell  the  real  estate  of  the 
deceased,  he  is  first  to  give  notice  of  the  time  and  place  of  the  sale. 
The  notice  is  to  be  "  published  for  the  space  of  six  weeks  successively, 
by  putting  up  notices  in  at  least  four  of  the  most  public  places  in 
the  county  where  such  real  estate  is  to  be  sold  ;  and  also  by  causing 
a  similar  notice  thereof  to  be  published  in  the  nearest  newspaper  in 
this  State." 

(«)  See  p.  314,  also  amended  act  as  to  sale,  etc.,  Cothran's  Stats.,  p.  76; 
cases  cited. 


CH.  XIV.]  THE   PROBATE   RECORD.  327 


The  forms. 


The  statute  provides  that  whenever  it  shall  be  represented  to  the 
court  that  any  orphan  minor  above  the  age  of  fourteen  years  has 
not  a  guardian,  it  shall  be  the  duty  of  the  court  to  issue  a  notification 
to  such  minor  to  appear  before  the  said  court  and  choose  a  guardian. 

This  representation  made  to  the  court  may  or  may  not  be  in 
writing ;  but  the  best  practice  is  to  require  it  in  writing. 

The  following  short  form  may  be  used : 

REPRESENTATION. 

STATE  OP  ILLINOIS,  )  County  Court  of          County, 

County.     J  Si  term,  A.D.1S    . 

To  Hon.  E  F,  Judge  of  said  Court : 

The  undersigned  respectively  represents  and  shows  to  your  honor,  that  one 
A  B,  resident  of  said  county,  is  an  orphan  minor  above  the  age  of  fourteen 
years,  to  wit,  of  the  age  of  sixteen  years,  and  has  no  guardian  ;  that  the  under- 
signed verily  believes  that  the  interest  and  welfare  of  the  said  A  B  requires 
the  appointment  of  a  guardian  for  him  ;  wherefore,  the  undersigned  prays  the 
court  to  notify  the  said  A  B  to  appear  in  said  court,  at  the  next  term 

thereof,  and  choose  a  guardian  ;  and  if  he  neglect  so  to  do,  that  the  court  will 
appoint  a  guardian  for  him. 

Dated  ,  18    .  CD. 

NOTICE  OP  APPLICATION  TO  SELL  REAL  ESTATE. 

Guardian's  Notice. 

STATE  OF  ILLINOIS,  )  In  the  County  Court  of  County, 

County.     \  s&  term,  A.  D.  18    . 

To  all  persons  concerned : 

Take  Notice,  That  the  undersigned,  guardian  of  E  F,  a  minor,  will  apply  to 
the  circuit  court  of  said  county,  at  the  next  term  thereof,  to  be  holden  at 
the  court-house  in  said  county  on  the  Monday  in  next,  for  an  order  to 

sell  the  following  described  real  estate,  belonging  to  said  minor,  and  situate  in 
the  county  of  ,  and  State  of  Illinois,  to  wit :  (here  describe  the  land),  and 

that  the  petition  therefor  is  now  on  file  in  the  office  of  the  clerk  of  said  court. 

A  B,  Guardian  of  E  F. 

Dated  ,  18    . 

The  statute  may  not  require  the  petition  to  be  on  file  before  the 
sitting  of  the  court,  but  such  is  a  just  practice,  as  it  will  afford  those 
interested  an  opportunity,  which  is  due  them,  to  examine  the 
grounds  upon  which  the  application  is  based. 

The  proof  of  publishing  the  notice  is  to  be  made  as  in  other  cases. 

FOBM   OF  PETITION  FOR   SALE  OF  REAL  ESTATE  BY   GUARDIAN. 

STATE  OF  ILLINOIS,  )  In  the  County  Court  of          County 

County.     \  Si  term,  A.  D.  18     . 

To  the  Hon.  B  C,  Judge  of  said  Court : 
The  petition  of  A  B,  of  the  county  of  ,  and  State  of  Illinois,  guardian 


328  THE   PROBATE   RECORD.  [CH- 


The  forms. 


of  E  F,  a  minor,  respectfully  represents  and  shows  to  your  honor :  That  your 
petitioner  was,  on  the  day  of  ,  A.  D.  18  ,  appointed  guardian  of  the 

said  E  F,  by  the  county  court  of  county,  as   will  appear  on  the  hearing 

hereof,  by  the  production  of  his  letters  of  guardianship  in  evidence. 

And  your  petitioner  further  shows,  that  as  such  guardian  he  has  faithfully 
applied  all  the  personal  estate  belonging  to  said  minor,  and  has  fully  exhausted 
the  same,  as  will  appear  on  the  hearing  hereof,  by  a  certified  copy  of  his 
account  rendered  to  the  county  court  of  county,  aforesaid,  at  the  last 

term  thereof,  and  the  order  of  said  court  approving  the  same,  which  is  hereto 
attached,  marked  "  Exhibit  A." 

And  your  petitioner  further  represents,  that  the  said  E  F  is  the  owner  in  fee 
of  the  following  described  real  estate,  situate  in  the  county  of  ,  and  State 

of  Illinois,  to  wit :  (here  insert  description  of  the  land) ;  that  said  land  is 
improved,  and  has  upon  it  a  dwelling-house  and  out-buildings  ;  that  the  said 
buildings  and  the  improvements  on  the  said  land  are  in  a  dilapidated  condition, 
and  rapidly  decaying  ;  that  the  dwelling-house  is  becoming  untenantable,  and 
the  fence  insufficient  to  protect  the  fields  ;  that  petitioner  has  no  funds  belonging 
to  said  minor  to  put  the  said  property  in  tenantable  repair  ;  that  said  real  estate 
is  deteriorating  in  value  for  the  reasons  aforesaid. 

And  your  petitioner  further  shows,  that  funds  are  needed  to  maintain  and 
educate  said  minor  in  a  proper  manner. 

And  your  petitioner  further  states,  that  said  real  estate  is  now  worth 
dollars,  and  that  the  interest  of  his  said  ward  would  be  greatly  promoted  by  a 
sale  of  the  said  property,  and  an  investment  of  the  funds  arising  from  the  sale 
thereof  in  wild  land,  after  deducting  such  an  amount  as  will  be  necessary  for 
the  maintenance  and  education  of  said  minor. 

Wherefore,  in  consideration  of  the  premises,  your  petitioner  prays  leave  to  sell 
the  said  real  estate,  according  to  the  statute  in  such  case  made  and  provided. 

And  your  petitioner  will  ever  pray,  etc.  A  B, 

Dated  ,18    .  Guardian  of  E  F. 

In  the  petition  by  a  resident  guardian  for  the  sale  of  real  estate. 
it  must  appear  that  he  has  faithfully  applied  all  the  personal  estate. 
or  if  there  was  no  personal  estate,  that  fact  must  be  distinct!}*  set 
out,  to  give  the  court  jurisdiction.  The  court  is  authorized  to  order 
the  sale  for  two  purposes,  either  for  the  support  and  education  of 
the  ward,  or  that  the  proceeds  maybe  invested  in  other  real  estate.(tf) 

The  law  in  regard  to  non-resident  guardians  of  infants,  who  own 
real  estate  in  Illinois,  appears  to  dispense  with  the  foregoing  requi- 
sition in  regard  to  the  application  of  all  the  personal  estate.  K"on- 
resident  guardians  are  entitled  to  an  order  for  the  sale  of  the  real 
estate  of  their  wards,  without  other  limitations  than  the  filing  with 
the  petition  authenticated  copies  of  their  letters  of  guardianship, 
(t)  Young  v.  Lorain,  11  HI.  638. 


CH.  XIV.]  THE   PROBATE    RECORD.  329 

The  forms. 

and  the  bond  required  by  such  act  for  the  faithful  application  of 
the  proceeds  of  such  sale,  in  such  manner  as  the  court  appointing 
the  guardian  may  direct,  and  the  approval  thereof.  The  sale  in  such 
a  case  is  to  be  for  the  purpose  of  educating  and  supporting  the  ward, 
or  of  investing  the  proceeds  of  the  sale  in  such  real  estate  as  the 
court  appointing  the  guardian  may  direct. 

In  all  other  respects  the  proceedings  on  applications  to  sell  real 
estate  by  non-resident  and  resident  guardians  are  the  same. 

The  order  will  direct  the  terms,  time  and  place  of  sale,  and  the 
notice  thereof  to  be  given,  which  order  must  be  strictly  followed,  to 
render  the  sale  legal. 

NOTICE  OP  GUAKDIAN'S  SALB. 
Guardian's  Sale. 

STATE  OF  ILLINOIS,) 

County,      f  w 

By  virtue  of  a  decretal  order  of  the  county  court  of  said  county,  entered  at 
the  last  term  of  said  court,  on  the  application  of  the  undersigned,  guar- 

dian of  E  F,  a  minor,  to  sell  the  following  described  real  estate  belonging  to 
said  minor,  situate  in  the  county  of  ,  and  State  of  Illinois,  to  wit :  (here 

insert  description  of  the  land),  I  shall,  on  the  day  of  next,  between 

the  hours  of  10  o'clock  A.  M.,  and  4  o'clock  p.  M.,  of  said  day,  sell  the  said  real 
estate  at  public  sale,  on  the  premises,  to  the  highest  and  best  bidder.  Terms 
of  sale  as  follows  :  one-half  cash  in  hand,  one -fourth  in  one  year,  and  the  bal- 
ance in  two  years,  with  six  per  cent  interest.  Approved  personal  security,  and 
a  mortgage  oh  the  premises  for  the  payment  of  the  unpaid  purchase-money, 
will  be  required  of  the  purchaser.  Deed  made  to  the  purchaser  on  the  day  of 
sale. 

No  bid  will  be  received  under  dollars  per  acre. 

AB, 

Dated  ,  18    .  Guardian  of  E.  F. 

The  notice  should  follow  the  order  of  court,  and  be  posted  or 
published  in  the  manner  required  by  the  order. 

After  the  sale,  the  guardian  is  required  to  report  it  and  the  con- 
veyance to  the  county  court,  for  its  approval. 

The  following  decisions  have  been  made  by  the  supreme  court 
upon  this  point.  In  case  of  Rawlings  v.  Bailey,  15  111.  178,  the 
court  say:  A  guardian's  deed  is  inoperative,  unless  the  sale  and 
conveyance  have  been  reported  to,  and  approved  by  the  circuit  court. 
The  same  principle  is  also  laid  down  in  15  111.  433,  444,  481;  11  id. 
642. 

Where  a  statute  provides  that  title  to  land  may  be  transferred  in 
43 


330  THE   PROBATE   RECORD.  [CH.  XIV. 

The  forms. 

a  particular  way,  it  must  be  done  in  the  way  prescribed,  or  it  receives 
no  sanction  from  the  statute,  and  is  void.  15  111.  481. 

REPORT  OF  GUARDIANS'  SALE. 

STATE  OF  ILLINOIS,  )  In  the  County  Circuit  Court  of  County, 

County.     J  Si  term,  A.  D.18    . 

In  the  matter  of  the  application  of ) 

A  B,  guardian  of  E  F,  to  sell  real  V  Report  of  Guardian's  Sale. 

estate.  %      ) 

The  undersigned,  guardian  of  E  F,  would  respectfully  submit  the  following 
report  of  his  acts  and  doings,  under  the  decretal  order  of  this  court,  entered  in 
said  cause  at  the  last  term  thereof,  for  the  sale  of  the  real  estate  in 

said  order  described. 

That  in  pursuance  of  said  order  and  decree,  the  undersigned  did,  on  the 
day  of  ,  18    ,  put  up  notices  of  the  sale  of  said  land  in  three  of  the 

most  public  places  in  said  county,  to  wit :  (here  name  the  places  where  posted)  a 
copy  of  which  said  notices  is  hereto  attached  and  made  a  part  of  this  report, 
marked  "  Exhibit  A."  That  said  notices  were  posted  more  than  weeks 

before  the  sale  of  said  land  hereinafter  mentioned. 

I  do  further  report,  that  on  the  said  day  of  ,  A.  D.  18     ,  and  at 

the  hour  of  12  o'clock  meridian,  I  did  expose  and  offer  at  public  sale,  on  the 
premises,  the  said  tract  of  land,  in  said  decree  described,  in  pursuance  of  the 
said  decree  and  the  said  notice,  when  bid  for  the  same  the  sum  of 

dollars,  and  he  being  the  highest  and  best  bidder  for  the  said  tract  of  land,  it 
was  sold  to  him  for  the  sum  of  dollars.  And  the  said  then  and 

there  paid  to  me  the  sum  of  dollars  in  hand,  and  executed  to  me,  as  such 

guardian,  his  promissory  notes  for  the  balance  of  said  purchase-money ;  one 
for  the  sum  of  dollars,  payable  six  months  after  date,  and  the  other  for 

the  sum  of  dollars,  payable  twelve  months  after  date,  each  with  interest. 

Said  also  executed  to  the  undersigned  a  mortgage  on  the  premises,  to 

secure  the  payment  of  the  said  unpaid  purchase-money,  wuereupon  I,  the  said 
A  B,  as  such  guardian,  executed  to  the  said  ,  a  deed  of  conveyance  in  fee 

of  the  said  tract  of  land  so  sold,  which  said  deed  is  here  shown  to  the  court 
for  approval. 

All  of  which  is  respectfully  submitted,  and  an  approval  and  confirmation  of 
said  acts  and  doings  prayed  for. 

A  B, 
Guardian  of  E  F. 

ADVERTISEMENT   OR  NOTICE  TO  BE  GIVEN    BY    EXECUTORS    OR    ADMINISTRA- 
TORS,  SO   SOON  AS   THEY  ARE   QUALIFIED   AS   SUCH. 

Public  notice  is  hereby  given,  that  the  undersigned  has  taken  out  letters  tes 
tamentary  of  the  last  will  and  testament  (or  of  administration  of  the  goods 


CH.  XIV.]  THE    PROBATE   K2COKD.  331 

The  forms. 

and  chattels,  rights  and  credits,  as  the  case  may  be)  of  A  B,  deceased,  and 
qualified  as  such  executor  (or  administrator).  All  persons  having  claims 
against  the  estate  of  the  deceased  are  hereby  notified  and  required  to  exhibit 
the  same  to  me,  or  to  the  county  court  of  the  county  of  ,  for  settle- 

ment, within  months  from  the  date  hereof.     Dated  at  ,  this 

day  of  ,  A.  D.  18    . 

C  D,  Executor,  etc.. 

CITATION  TO  RETURN  INVENTORY  *AND  APPRAISEMENT. 

STATE  OP  ILLINOIS,) 
County  of  .   ]  8* 

The  People  of  the  State  of  Illinois,  to  the  Sheriff  of  said  county,  greeting : 

WHEREAS,  it  appears  to  our  county  court  of  county,  upon  an  inspection 

of  the  records  thereof,  that  more  than  three  months  have  elapsed  since  the 
grant  of  letters  to  ,  as  administrator  of  the  estate  of  ,  deceased, 

and  that  the  said  ,  administrator,  ha     not  returned  an  inventory  and 

appraisement  of  said  estate,  as  required  by  statute,  but  fails  and  neglects  so 
to  do. 

We  do,  therefore,  hereby  command  you  to  cite  the  said  ,  administrator 

as  aforesaid,  to  be  and  appear  before  our  county  court  of  county,  at  the 

court-house  in  ,  in  said  county,  on  the  day  of  ,  A.  D.  18    ,  at 

o'clock  M.,  then  and  there  to  answer  for  such  neglect,  and  show  cause 
why  he  ha  not  exhibited  an  inventory  and  appraisement  of  the  estate  of 
said  decedent,  and  why  he  should  not  be  removed  for  such  neglect ;  and 
further  to  do  and  receive  in  this  behalf  as  unto  law  and  justice  shall  appertain 
under  pain  of  the  law  and  contempt  thereof. 

And  hereof  make  due  service  and  return  as  the  law  directs. 

Witness,  ,  clerk  of  the  county  court  of  county,  and  the  seal  of 

said  court,  at  ,  in  said  county,  this  day  of  ,  A.  D.  18    . 

,  Clerk. 

AFFIDAVIT  OF  CLAIM   AGAINST   ESTATE  OF   DECEASED. 

'  In  the  CoUnty  C°Urt  °f  °°Unty- 

,  being  duly  sworn,  deposes  and  says,  that  the  annexed  account  against 
the  estate  of  ,  deceased,  is  just  and    unpaid,  and  this  deponent  verily 

believes  that  all  credits  and  offsets  thereto  have  been  allowed,  and  that  he  has 
no  other  claim  against  said  estate. 

Sworn  to  and  subscribed  before  me, ) 
this  day  of  ,  A.  D.  18     .      ) 

,  Clerk  of  the  County  Court. 

claim   of  the  estate  ,  deceased,  as  the  amount  due   on  , 

hereto  annexed,  over  and  above  all  credits  and  offsets,  the  sum  of  dollars 

and  cents,  and  interest  on  from  ,  A.  D.  18    ,  at  per  cent 

per  annum. 

,  Plaintiff. 


332  THE   PROBATE   EECOKD.  [CH.  XIV. 

The  forms. 


CITATION  TO  ADJUDICATE. 


STATE  OF  ILLINOIS,  . 

~  ™  S3  , 


.is,) 
County  of  .     ) 

The  People  of  the  State  of  Illinois,  to  the  sheriff  of  said  county,  greeting : 

WHEREAS,  it  appears  to  our  county  court  of  county,  upon  an  inspection 

of  the  records  thereof,  that  more  than  six  months  have  elapsed  since  the  grant 
of  letters  ,  and  that  the  said  ha  not  fixed  upon  a  term  of  said 

court  for  the  settling  and  adjusting  all  claims  against  said  decedent  as 
required  by  law,  but  fails  and  neglects  so  to  do. 

We  do,  therefore,  hereby  command  you  to  cite  the  said  ,  as  aforesaid, 

to  be  and  appear  before  our  county  court  of  county,  at  the  court-house 

in  ,  in  said  county,  on  the  day  of  ,  A.  D.  18     ,  at  o'clock, 

M.,  then  and  there  to  answer  for  such  neglect,  and  show  cause  why  he 
should  not  be  removed ;  and  further  to  do  and  receive  in  this  behalf  as  unto 
law  and  j  ustice  shall  appertain,  under  pain  of  the  law  and  contempt  thereof. 

And  hereof  make  due  service  and  return  as  the  law  directs. 

Witness,  ,  clerk  of  the  county  court  of  county,  and  the  seal  of 

said  court,  at  ,  in  said  county,  this  day  of  ,  A.  D.  18    . 

,  Clerk. 

INDENTURE  OF  APPRENTICESHIP  OF  A  MINOR,  WITH  THE  CONSENT  OF  FATHER, 
MOTHER  OR  GUARDIAN. 

This  indenture,  made  and  entered  into  this  day  of  ,  A.  D.  18  , 

between  A  B,  a  minor,  of  his  own  free  will  and  accord,  and  by  and  with  the 
consent  and  approbation  of  E  F,  his  father,  of  the  county  of  ,  and  State 

of  Illinois  (or  mother  or  guardian,  as  the  case  may  be),  of  the  one  part,  and 
Q  H,  of  the  same  county  and  State,  of  the  other  part,  witnesseth :  That  the 
said  A  B  does,  by  these  presents,  of  his  own  free  will  and  accord,  and  by  and 
with  the  consent  of  E  F,  his  father  (or  mother  or  guardian),  bind  himself  to  the 
said  Gr  H,  as  an  apprentice,  to  learn  the  art  (trade  or  mystery  of  merchant, 
hatter,  tanner  or  carpenter,  or  as  the  case  may  be),  to  dwell  with  and  serve  the 
said  G  H,  from  the  day  of  the  date  hereof  until  the  day  of  ,  in  the 

year  18  ,  at  which  time  the  said  A  B  will  be  twenty-one  years  of  age.  During 
all  of  which  time,  or  term,  the  said  apprentice  his  said  master  well  and  faith- 
fully shall  serve,  his  secrets  keep,  and  his  lawful  commands  everywhere,  at  all 
times,  readily  obey ;  he  shall  do  no  damage  to  his  said  master,  nor  knowingly 
suffer  any  to  be  done  by  others ;  he  shall  not  waste  the  goods  of  his  said  master, 
nor  lend  them  unlawfully  to  any ;  at  cards,  dice,  or  any  other  unlawful  game, 
he  shall  not  play ;  matrimony  he  shall  not  contract  during  the  said  term  ; 
taverns,  ale-houses,  and  places  of  gaming  he  shall  not  frequent  or  resort ;  from 
the  service  of  his  said  master  he  shall  not  absent  himself  ;  but  in  all  things. 
and  at  all  times,  he  shall  demean  and  conduct  himself  as  a  good  apprentice 
ought,  during  the  whole  term  aforesaid. 

And  the  said  G  H.  on  his  part,  does  hereby  covenant  and  agree  to  furnish  the 
said  apprentice  good  and  sufficient  diet,  clothing,  lodging  and  other  necessaries 
convenient  and  useful  for  said  apprentice  during  the  term  aforesaid,  and  also 


CH.  XIV.]  THE   PEOBATE   BECOED.  333 


The  forms. 


shall  cause  said  apprentice  to  be  taught  to  read  and  write,  and  the  ground 
rules  of  arithmetic;  and  shall  also  give  unto  said  apprentice  a  new  Bible  and 
two  new  suits  of  clothes,  suitable  to  his  condition,  at  the  expiration  of  his  term 
of  service. 

In  testimony  whereof,  etc. 

A  B.  [L.  s.] 

E  F.   [L.  8.] 

G  H.  [L.  s.] 

INDENTURE  OF  APPRENTICESHIP,  BY  COUNT?  JUDGE,  TWO  JUSTICES  OP  THE 
PEACE,  OR  TWO  OVERSEERS  OP  THE  POOR. 

This  indenture,  made  and  entered  into  this  day  of  ,  A.  D.  , 

between  A  B  and  C  D,  overseers  of  the  poor  (or  justices  of  the  peace,  or  county 
judge),  in  and  for  the  county  of  ,  and  State  of  Illinois,  of  the  one 

part,  and  E  F,  of  the  same  county  and  State,  of  the  other  part,  witnesseth : 
That  the  said  overseers  of  the  poor,  by  virtue  of  the  law  of  the  State  of  Illinois 
in  such  cases  made  and  provided,  have  placed,  and  by  these  presents  do  place 
and  bind  out,  as  an  apprentice,  a  poor  child,  named  ,  son  of  ,  of  said 

county  of  ,  who  is  legally  settled  in  and  become  chargeable  to  said 

county,  and  who  is  proven  to  said  overseers  to  be  unable  to  maintain  lain,  the 
said  child,  who  is  now  of  the  age  of  years,  to  said  E  F,  to  learu  the  art, 

trade  or  mystery  of  ,  of  the  said  E  F,  after  the  manner  of  an  apprentice, 

to  dwell  with,  and  serve  the  said  E  F,  from  the  day  of  the  date  hereof,  until 
the  day  of  ,  A.  D.  ;  at  which  time  the  said  apprentice  will  be 

twenty -one  years  of  age.  During  all  of  which  time  or  term,  the  said  appren- 
tice his  master  well  and  faithfully  shall  serve,  his  secrets  keep,  and  his  lawful 
commands,  everywhere  and  at  all  times,  readily  obey  ;  he  shall  do  no  damage 
to  his  said  master,  nor  knowingly  suffer  any  to  be  done  by  others  ;  he  shall 
not  waste  the  goods  of  his  said  master,  nor  lend  them  unlawfully  to  any  ;  at 
cards,  dice  or  any  other  unlawful  games,  he  shall  not  play  ;  matrimony  he  shall 
not  contract  during  the  said  term ;  taverns,  ale-houses,  or  places  of  gaming  he 
shall  not  frequent  or  resort ;  from  the  service  of  his  said  master  he  shall  not 
absent  himself ;  but  in  all  things,  and  at  all  times,  he  shall  demean  and  behave 
himself  as  a  good  and  faithful  apprentice  ought,  during  the  whole  term 
aforesaid. 

And  the  said  E  F  binds  himself  to  cause  said  apprentice  to  be  taught  to  read 
and  write,  and  the  ground  rules  of  arithmetic;  and  shall  also  give  unto  said 
apprentice  a  new  Bible,  and  two  suits  of  clothes,  suitable  to  his  condition,  at 
the  expiration  of  his  said  term  of  service. 

In  testimony,  etc.* 

A  B.  [L.  s.] 

C  D.   [L.  8.] 

E  F.  [L.  s.] 

"The  above  indenture,  by  the  overseers  of  the  poor,  must  be  executed  with  the  con- 
sent of  the  county  judge.  It  will  be  sufficient  for  him  to  indorse  such  consent  on 
the  back  of  said  indenture.  In  every  case  of  binding  a  poor  or  orphan  child,  by  any 
of  the  authorized  officers,  a  copy  of  the  indenture  must  be  filed  with  the  county  judge 
for  safe-keeping.  E.  S.  1874,  p.  146.  * 


334  THE   PROBATE   RECORD.  [CH.  XIV. 

The  forms. 

,  NOTICE  TO  MINORS. 

WHEREAS,  it  is  represented  to  the  court  of  probate,  that  you,  the  said  A  B, 
are  an  orphan  minor,  above  the  age  of  fourteen  years,  and  entitled  to  some 
estate  (real  or  personal,  as  the  case  may  be)  of  your  deceased  father,  and  that 
you  have  no  guardian ;  you  are,  therefore,  hereby  notified  to  appear  before  the 
court  of  probate,  on  the  day  of  next,  and  choose  a  guardian ;  and 

if  you  shall  neglect  or  refuse  to  appear  and  choose  a  guardian,  the  said  court 
will  proceed  to  appoint  one  for  you. 

(Teste.) 

The  Chicago  fire  (October  8,  9,  1871),  necessitated  the  Burnt 
Eecords  Bill.*  The  following  section  pertains  to  the  probate  juris- 
diction : 

"  In  case  of  the  destruction  by  fire  or  otherwise  of  the  records,  or 
any  part  thereof,  of  any  county  court  having  probate  jurisdiction, 
the  judge  of  any  such  court  may  proceed,  upon  his  own  motion,  or 
upon  the  application,  in  writing,  of  any  party  in  interest,  to  restore 
the  records,  papers  and  proceedings  of  his  court  relating  to  the 
estates  of  deceased  persons,  including  recorded  wills  and  wills  pro- 
bated or  filed  for  probate  in  said  court;  and  for  the  purpose  of 
restoring  said  records,  wills,  papers  -or  proceedings,  or  any  part 
thereof,  may  cause  citations  to  be  issued  to  any  and  all  parties  to  be 
designated  by  him,  and  may  compel  the  attendance  in  court  of  any 
and  all  witnesses  whose  testimony  may  be  necessary  to  the  estab- 
lishment of  any  such  record  or  part  thereof,  and  the  production  of 
any  and  all  written  or  documentary  evidence  which  may  be  by  him 
deemed  necessary  in  determining  the  true  import  and  effect  of  the 
original  record,  will,  paper  or  other  document  belonging  to  the  files 
of  said  court ;  and  may  make  such  orders  and  decrees  establishing 
said  original  record,  will,  paper,  document  or  proceeding,  or  the  sub- 
stance thereof,  as  to  him  shall  seem  just  and  proper;  and  such 
judge  may  make  all  such  rules  and  regulations  governing  the  said 
proceedings  for  the  restoration  of  the  record,  will,  paper,  document 
and  proceeding  pertaining  to  said  court,  as  in  his  judgment  will 
best  secure  the  rights  and  protect  the  interests  of  all  parties  con- 
cerned." 

*•§  3,  act  to  provide  for  the  restoration  of  court  records  which  have  been  lost  or  de- 
Btroyed.  March  19, 1872.  R.  S.  18T4,  p.  838. 


CH.  XIV.]  THE   PKOBATE   EECOKD.  335 

The  forms. 


PETITION  FOR  THE  RESTORATION   OP   A  PROBATE  RECORD. 

STATE  OF  ILLINOIS,  |  In  the  County  Court  of          County, 

County.     \  s&  term,  18    . 

In  the  matter  of  the  restoration } 
of  the  files  and  records  in  the  >• 
estate  of  ,  deceased.  ) 

To  the  Honorable  ,  Judge  of  said  Court : 

Your  petitioner  ,  respectfully  showeth  unto  your  honor  : 

GRANT  OF  ADMINISTRATION.    That  on  the        day  of  ,  18    ,  filed 

h      petition  for  administration  upon  the  estate  of  the  said  deceased  in  said 
court,  a        copy  of  which  petition  is  herewith  presented,  marked  "  Exhibit 
,"  That  on  said  day  last  named  said  also  filed  in  said  court 

h      bond  as  such  administrat       in  the  penal  sum  of  $          ,  with  as 

sureties,  which  bond  was  then  and  there  approved  by  said  court,  a  copy 

of  which  is  herewith  presented,  marked  "  Exhibit  ,"  certified  by  said  sure- 
ties to  be  a  true  copy  of  the  original  bond ;  that  thereupon  said  court,  on  the 
day  last  named,  made  the  usual  order  granting  letters  of  administration  accord- 
ing to  the  prayer  of  said  petition,  a  copy  of  said  letters  of  administration 
is  herewith  presented,  marked  "  Exhibit  ." 

That  before  receiving  said  letters,  and  on  the  day  last  named,  said  adminis 
trat  in  open  court  subscribed  and  swore  to  the  usual  administrator's  oath, 
a  copy  of  which  is  herewith  presented,  marked  "  Exhibit  ." 

t 

INVENTORY.  That  on  said  day  last  named  said  administrat  caused  to  be 
filed  in  said  court  an  inventory  of  the  estate  of  said  deceased,  which  was  then 
approved  by  said  court,  a  copy  of  which  is  herewith  presented,  marked 
"  Exhibit 

APPRAISEMENT.     That  were  on  said  day  last  named  appointed  apprais- 

ers of  said  estate,  and  a  warrant  was  then  issued  to  them,  a  copy  of  which 
is  herewith  presented,  marked  "  Exhibit  ,"  to  which  is  also  appended  a 
copy  of  the  oath  taken  by  the  appraisers ;  the  said  appraisers,  after  taking  and 
signing  the  oath  of  office,  made  an  appraisement  of  the  personal  estate  of  said 
deceased,  subject  to  appraisement,  which  was  approved  by  said  court  on  the 
day  of  ,  18  ,  a  copy  of  which  is  herewith  presented,  marked 

"  Exhibit 

WIDOW'S  AWARD.  That  said  appraisers  made  out  and  appraised  the  widow's 
award,  amounting  to  $  ,  which  award  was  on  the  day  last  named  approved 
by  said  court,  a  copy  of  which  is  herewith  presented,  marked  "  Exhibit  .'" 

WIDOW'S  SELECTION.     That  on  the         day  of  18     ,  widow  of  said 

deceased,  filed  her  selection,  amounting  to  $  ,  a  copy  of  which  is  here- 
with presented,  marked  "  Exhibit  ." 

SALE  OF  PERSONAL  PROPERTY.     That  said  administrat        on  the        day  of 

,  18    ,  sold  the  personal  property  of  said  deceased  at  public  vendue,  and 

returned  a  sale's  bill  thereof  amounting  to  $        to  said  court,  which  wag 


336  THE   PROBATE   RECORD.  [CH.  XIV. 


The  forms. 


approved  on  the         day  of  ,  18    ,  a        copy  of  the  notices  posted  for 

such  sale,  the  affidavit  of  posting,  and  the  sale's  bill,  are  hereto  attached, 
marked  "Exhibit  ." 

ADJUDICATION  OF  CLAIMS.  That  the  administrat  fixed  upon  the 
term,  18  ,  of  said  court  for  the  adjustment  of  all  claims  against  the  estate  of 
said  deceased,  and  posted  and  published  the  notice  for  such  adjudication  as 
required  by  the  statute,  a  copy  of  such  notice,  together  with  the  proof  of 
posting  and  certificate  of  publication,  are  herewith  presented,  marked  "  Exhibit 
*  ."  That  on  the  day  of  ,  18  ,  the  said  court  entered  the  usual  order 
of  adjudication  in  said  estate,  and  that  the  following  is  a  true  statement  of  all 
claims  allowed  against  said  estate  up  to  the  day  of  ,  18  ,  with  the 

amount  and  date  of  allowance : 

Class  allowed  on  the  day  of  ,  18  ,  for  $ 

Class  allowed  on  the  day  of  ,  18  ,  for  $ 

Class  allowed  on  the  day  of  ,  18  ,  for  $ 

Class  allowed  on  the  day  of  ,  18  ,  for  $ 

ACCOUNTS.    First  Annual.  —  That  on  the        day  of  ,  18    ,  said  admin- 

istrat presented  h  first  annual  account,  showing  receipts  amounting  to 
$  ,  and  disbursements  amounting  to  $  ,  for  approval,  which  on  said  day 
last  named  was  approved  by  said  court,  a  copy  of  which  is  herewith  pre- 
sented, marked  "  Exhibit  ." 

Second  Annual.  —  That  on  the        day  of  ,18    ,  said  administrat 

presented  h  second  annual  account,  showing  receipts  amounting  to  $  ,  and 
disbursements  amounting  to  ,  for  approval,  which,  on  the  day  last  named, 
was  approved  by  said  court,  a  copy  of  which  is  herewith  presented, 
marked  "  Exhibit  ." 

Final.  —  That  on  the         day  of  ,  18    ,  the  said  administrat         pre- 

sented to  said  court  h      final  account,  showing  receipts  amounting  to  $ 
and  disbursements  amounting  to  $        ,  which,  on  said   day  last  named,  was 
approved  by  said  court,  a        copy  of  which  is  herewith  presented,  marked 
"  Exhibit 


PROOF  OF  HEIRSHIP  AND  DISCHARGE.     That  on  said  day  last  named  proof 
of  heirship  was  taken  in  open   court  and  were  found  to  be  the  only 

heirs  of  said  deceased,  and  the  said  administrat  then  producing  the  receipts 
of  all  of  said  heirs  for  their  distributive  shares  of  the  estate  of  said  deceased, 
the  court  then  found  that  all  the  assets  of  said  estate  had  been  collected  ;  that 
all  claims  against  the  same  had  been  paid  ;  that  more  than  two  years  had  elapsed 
since  the  appointment  of  said  administrat  ,  and  ordered  h  discharge  and 
declared  said  estate  settled,  a  copy  of  which  order,  together  with  a  copy 
of  the  testimony  upon  which  it  was  founded,  is  herewith  presented,  marked 
"  Exhibit 


CH.  XIV.]  THE   PROBATE.  RECORD.  337 


The  forms. 


That  your  petitioner  believes  the  above  to  set  forth  substantially  all  the 
orders  of  court  made  in  the  matter  of  the  administration  of  the  estate  of  =said 
deceased,  and  the  files  upon  which  said  orders  were  based  ;  that  petitioner  is 
interested  in  said  estate  as  .  That  the  records  of  said  court,  and  the  files 

relating  to  said  estate  were  all  destroyed  by  fire  on  the  9th  of  October,  1871, 
wherefore  your  petitioner  prays  that  your  honor  will-  find  the  copies  herewith 
presented,  as  Exhibits,  to  be  true  copies  of  the  originals  so  destroyed  as  afore- 
said, and  order  them  to  be  entered  and  recorded  as  such,  and  restore  all  orders 
that  have  been  made  in  the  administration  of  said  estate,  and  that  all  further 
orders  necessary  may  be  entered. 

,  Attorney  for  Petitioner. 

STATE  OF  ILLINOIS,) 
County. 

being  duly  sworn,  doth  depose  and  say  that  h      has 

read  the  above  petition  by  h  subscribed,  and  know  the  contents  thereof,  and 
that  the  same  is  true  of  h  own  knowledge,  except  as  to  matters  stated  upon 
information  and  belief,  and  as  to  these  matters  h  believes  it  to  be  true. 

Subscribed  and  sworn  before  me  ] 
this        day  of  ,  18    . 

,  Clerk. 


1 


INDORSEMENT. 

County  Court  of  County.    Estate  of  ,  deceased.    Petition  of  ,  for 

the  restoration  of  the  flies  and  records  of  an  intestate  estate. 
Filed  this          day  of  ,  18     . 

,  Clerk. 
43 


APPENDIX. 


The  act  of  April  1,  1872,  entitled  "  An  act  in  regard  to  the  administration  of 
estates,"  is  to  be  thoroughly  understood  by  all  who  would  successfully  and 
satisfactorily  administer  upon  the  estates  of  decedents  in  Illinois.  Although 
the  several  sections  of  this  act  are  embodied  (exactly  as  we  find  them  on  the 
statute  book)  in  the  foregoing  pages,  to  the  proper  exposition  of  the  law,  we 
here  add  a  logical  summary,  and  in  the  index  give  an  alphabetical  synopsis  of 
the  act.  The  other  acts  referred  to  at  page  7  supra  are  sufficiently  delineated 
throughout  the  preceding  pages  and  in  the  index.  Consult  STATUTES  in  the 
index, infra. 

LOGICAL   SUMMARY  OF  THE   ACT   IN   REGARD   TO   THE   ADMINISTRATION   OP 

ESTATES. 

TESTAMENTARY  LETTERS  may  issue  on  probate  of  will,  accepting  the  trust, 
and  giving  bonds.  §  1,  act  April  1,  Laws  1872,  77.  See  pp.  49,  53,  54,  supra. 

ADMINISTRATOR  DE  BONIS  NON,  if  no  executor  be  named  in  the  will,  if  the 
executor  die,  refuse  to  act,  or  become  incapacitated  or  disqualified,  may  be 
appointed  as  if  for  an  intestate  estate.  Id. 

EXECUTOR,  IP  NOT  NAMED  IN  THE  WILL,  if  he  dies,  refuses  to  act,  or  is  other- 
wise disqualified  to  act,  administration  cum  testamento  annexe  to  take  place  as 
if  testate  had  died  intestate.  Id. 

LETTERS  TESTAMENTARY  may  issue  on  probate  of  will,  accepting  the  trust, 
and  giving  bonds.  Id. 
WILL,  COPY  OF,  in  all  cases  must  go  out  with  the  letters.  Id. 

APPEARANCE  OP  WIDOW  OR  NEXT  OP  KIN,  or  creditor  of  decedent.  It  be- 
comes the  duty  of  the  court  to  revoke  the  letters  given  to  the  public  admin- 
istrator and  grant  the  same  to  those  entitled.  §  48,  act  April  1,  Laws  1872,  p. 
89.  See  p.  71,  supra. 

Two  or  more  appointed  executors,  if  one  or  more  die,  refuse  to  act,  01  become 
disqualified,  the  survivor  or  survivors  may  take  the  trust.  §  5,  Laws  1872,  p 
78.  See  p.  282,  supra. 

Form  of  oath  of  executor  or  administrator  cum  testamento  annexo.  §  6,  id 
See  pp.  28,  29,  80,  supra. 

Oa  th  to  be  attached  to  and  form  a  part  of  the  record.  Id. 

Oath  of  executor  or  administrator  cum  testamento  annexo.  Id. 

EXECUTOR'S  BOH>D.  Form  of,  must  be  filed  and  recorded.  §  7,  id.  See  pp. 
28,  30,  supra. 

Bond,  in  case  of  estate  more  than  enough  to  pay  debts,  may  direct  that  no 


34:0  APPENDIX. 

security  be  required,  but  the  court  may,  in  its  discretion,  even  then  require 
security.    §  8,  id.     See  p.  56,  supra. 

REMOVAL  OF  EXECUTOR  OK  ADMINISTRATOR  not  to  affect  the  jurisdiction 
or  power  of  the  court  first  taking  probate  of  the  will.  §  9,  id. 

DIVISION  OF  A  COUNTY,  on,  if  letters  have  been  granted  to  proceed  notwith- 
standing, or  in  removal  of  executor  or  administrator  to  another  county.  Id. 

LETTERS  TESTAMENTARY,  FORM  OF.    §  10,  id.    See  p.  49,  supra. 

ADMINISTRATOR  TO  COLLECT.  In  case  of  any  contingency  causing  great 
delay  in  proof  of  will  or  granting  letters,  may  be  appointed.  §  11,  id.  See 
pp.  67,  72,  supra.  Letters  to,  §  12,  id.  See  p.  72,  supra.  Bond  of,  §  13,  id. 
See  p.  77,  supra.  Oath  of,  §  14,  id.  See  p.  73,  supra.  Power  of,  §§  15,  16, 
id.  See  p.  278,  supra.  Revocation  of,  §  17,  id.  See  p.  279,  supra. 

DEATH.  Proof  of  death  must  be  made  before  administration  can  be  granted. 
§  18,  id.  See  pp.  64,  67,  77,  supra. 

INTESTACY.  Proof  of,  must  be  made  before  granting  administration.  §g  18, 
20,  id. 

LETTERS  OF  ADMINISTRATION  to  widow  or  widower,  next  of  kin,  creditors 
or  discretionary.  Widow  or  next  of  kin  must  apply  within  sixty  days  after  death 
of  decedent,  creditors  within  the  next  fifteen  days,  then  the  court  may  exer- 
cise its  discretion.  Id. 

PROOFS  of  death  and  intestacy  must  be  made  to  obtain  administration.  §£  18, 
20,  id. 

RELINQUISHMENT.  Administration  not  to  be  granted  within  seventy-five 
days  after  death  of  decedent,  unless  relinquishment  be  made  by  all  those 
entitled ;  after  seventy-five  days,  the  court  may  act  at  its  discretion.  §  19,  id. 
See  pp.  64,  75,  supra. 

APPLICANT  FOR  LETTERS  must  file  an  affidavit,  showing  date  of  death  and 
probable  amount  of  personal  estate,  and  the  names  of  heirs  and  widow  or 
widower,  if  known.  §  20,  id. 

LETTERS  OF  ADMINISTRATION.  Form  of,  to  be  changed  and  applied  mutatis 
mutandis  to  all  cases  of  administration.  §  21 ,  id.  See  p.  79,  supra. 

OATH  OF  ADMINISTRATOR.  Form  of,  to  be  made  and  filed.  §  22,  id.  See  p. 
79,  supra. 

BOND  OF  ADMINISTRATOR.  Form  of,  to  be  changed  and  applied  to  all  cases 
of  administration  mutatis  mutandis.  §  23,  id.  See  pp.  79,  80,  supra. 

Two  OR  MORE  EXECUTORS  may  give  joint  or  several  bonds,  as  the  court  may 
direct.  §  24,  id.  See  p.  279,  supra. 

SUITS  ON  BONDS  may  be  had  in  the  name  of  the  people  of  the  State  of  Illi- 
nois, for  the  use  and  at  the  cost  of  whom  it  may  concern.  §  25,  id.  See  p.  279 
supra. 

REVOKING  LETTERS.  If  letters  be  obtained  upon  false  or  fraudulent  repre- 
sentations or  pretense,  the  court  must  revoke  them.  §  26,  id?  See  p.  280,  svpra. 

COSTS  TO  BE  PAID  by  party  obtaining  letters  fraudulently,  and  on  their  revo- 
cation. §  27,  id.  See  p.  280,  supra. 


APPENDIX.  341 

WILL,  DISCOVERY  AND  PROBATE  OP,  to  revoke  letters  of  administration. 
g  28,  id.  See  p.  280,  supra. 

CANCELLATION  OF  A  WILL  in  due  course  of  law  to  revoke  the  letters  testa- 
mentary thereon.  §  29,  id.  See  p.  280,  supra. 

ADMINISTRATOR  de  bonis  non  may  be  appointed.    §  37,  id.    See  p.  282,  supra. 

ADDITIONAL  BONDS,  executors  or  administrators,  etc.,  may  be  required  to 
give,  or  others  appointed  and  empowered.  §  38,  id.  See  p.  282,  supra. 

FORMER  ADMINISTRATOR  shall  be  liable  for  devastavit,  etc.  $  39,  id.  See  p. 
283, supra .  • 

RESIGNATION  may  be  made  by  either  executor  or  administrator,  in  the  dis- 
cretion of  the  court,  on  full  settlement  of  accounts  and  surrendering  estate. 
§  40,  id.  See  p.  96,  supra. 

FOREIGN  EXECUTOR  OR  ADMINISTRATOR  may  file  duly  authenticated  copy  of 
his  letters  in  any  court  in  this  State  and  enforce  claims  and  sell  land  to  pay 
debts  (§  42,  id.),  if  there  be  no  executor  or  administrator  in  this  State.  §  43, 
id.  See  pp.  82,  96,  supra, 

FOREIGN  ADMINISTRATOR'S  OR  EXECUTOR'S  SUIT  to  inure  to  benefit  of  domestic 
executor  or  administrator  if  one  be  appointed  pendente  lite.  §  43,  id.  See  p.  82, 
supra. 

PUBLIC  ADMINISTRATORS  are  to  be  appointed  by  the  governor  by  and  with 
the  advice  and  consent  of  the  senate,  one  for  each  county  whenever  vacancy 
may  occur,  who  must  take  the  oath  prescribed.  §  44,  id.  See  pp.  70,  71,  supra. 

INTESTATES  LEAVING  NO  RELATIVES  OR  CREDITORS,  possessed  of  real  estate, 
the  same  is  to  be,  on  the  application  of  any  person  interested  therein,  com- 
mitted to  the  public  administrator.  §  46,  id.  See  p.  71,  supra. 

COMMISSIONS  AND  EXPENSES  EARNED  AND  INCURRED  BY  A  PUBLIC  ADMINIS- 
TRATOR are  not  affected  by  a  re-grant  of  administration  to  those  entitled. 
£  47,  id.  See  p.  71,  supra. 

BOND  OF  PUBLIC  ADMINISTRATOR  to  be  required  as  in  the  other  cases,  failure 
to  give,  for  sixty  days,  a  vacatur  of  his  office,  and  upon  certificate  of  the  fact  from 
the  county  judge,  the  governor  is  to  fill  the  vacancy.  §  47,  id.  See  p.  71,  sv,pra. 

CARE,  CUSTODY  AND  MANAGEMENT  of  the  estate  of  intestates  committed  to 
the  public  administrator.  §  49,  id.  See  p.  71,  supra. 

DUTY  OF  PUBLIC  ADMINISTRATOR  to  protect  estates  generally  until  adminis- 
tration. §  50,  id.  See  p.  71,  supra. 

INVENTORY  TO  BE  RETURNED  within  three  months  after  letters  are  granted, 
containing:  1.  Description  of  quantity,  situation  and  title  of  the  real  estate. 
2.  Specifying  the  nature  and  amount  of  all  annuities,  rents,  goods,  chattels, 
rights,  and  credits,  and  money  on  hand,  and  whether  the  credits  are  good, 
doubtful  or  desperate.  §  51,  id.  See  p.  167,  supra. 

ADDITIONAL  INVENTORY  is  to  be  returned  whenever  any  other  real  or  per- 
sonal property  becomes  known  to  the  administrator.  §  52,  id.  See  p.  167,  supra. 

APPRAISERS,  to  be  three  disinterested  persons,  their  warrant  to  issue  with 
the  letters,  their  powers  and  duties,  form  of  warrant,  vacancy  in  number  may 
be  filled.  §  53,  id.  See  p.  171,  supra. 


342  APPENDIX. 

APPRAISERS  TO  TAKE  AND  SUBSCRIBE  AN  OATH  to  be  indorsed  upon  or 
annexed  to  the  warrant ;  form  of  oath.  §  54,  id.  See  p.  172,  supra. 

METHOD  OF  MAKING  APPRAISEMENT.  To  set  down  each  article  with  the 
value  thereof  in  dollars  and  cents,  in  columns,  as  prescribed.  Id. 

BILL  OP  APPRAISEMENT  to  be  certified  by  the  appraisers,  under  their  hands 
and  seals,  to  the  executor  or  administrator,  and  by  him  to  be  returned  within 
three  months  after  grant  of  letters.  §  55,  id.  See  p.  172,  supra. 

INVENTORIES  AND  APPRAISEMENT  bills,  and  authenticated  copies  thereof, 
prima  facie  evidence  only  of  their  contents  respectively.  §  56,  id.  See  p.  173, 
supra. 

ADDITIONAL  APPRAISEMENT  to  be  made  if  other  property  be  discovered,  and 
within  three  months  after  discovery.  §  57,  id.  See  pp.  173,  174,  supra. 

EXECUTORS  AND  ADMINISTRATORS  chargeable  for  all  estate  which  may  or 
might  after  due  and  proper  diligence  be  recovered.  §  58,  id.  See  p.  174, 
supra.  Johnson  v.  Maples,  49  111.  101 ;  Neubrecht  v.  Santmeyer,  50  id.  74. 

APPRAISERS'  FEES  FIXED  at  two  dollars  per  day  for  necessary  attendance, 
to  be  allowed  by  the  court.  §  59,  id.  See  p.  174,  supra. 

ASSETS.  If,  after  appraisement,  the  assets  do  not  exceed  the  widow's  allow- 
ance, the  executor  or  administrator  is  to  report,  and  the  court,  if  it  finds 
the  facts  true,  is  to  order  the  same  transferred  to  her  and  close  the  adminis- 
tration. Id. 

DISCOVERT  OF  NEW  ASSETS.  In  such  cases  administration  may  be  granted 
de  novo.  Id. 

ATTACHMENT,  CITATION.  And  on  failure  of  executor  or  administrator  to 
report  deficiency  of  assets,  etc.,  for  widows'  allowance.  Id. 

CLAIMS  against  estates.    §§  60-73,  id.    See  pp.  215,  217,  222-225,  supra. 

Widows' award.  §§  74-77.  See  pp.  209-212,  supra.  Renunciation.  §§ 
78,  80,  id.  See  pp.  219,  220,  supra.  Collection  and  disposition  of  assets.  §§  81- 
96,  id.  See  pp.  174-183,  supra.  Sale  of  real  estate.  §§97-111,  id.  See  pp. 
186-201,  supra.  Settlement  by  administrators  and  executors.  §§  112-119. 
See  pp.  190,  233,  239,  240,  supra.  Mortgage  of  real  estate.  §§  120,  122,  id. 
See  pp.  191,  192,  supra.  Actions.  §  123,  id.  See  pp.  83, 192,  supra.  Appeals. 
§§  124,  125,  id.  See  pp.  272,  273,  supra. 

DISQUALIFICATION  OF  COUNTY  JUDGE,  as  a  material  or  necessary  witness, 
or  a  party  interested,  transfers  the  case  to  the  circuit  court  of  the  county ;  case 
to  be  certified  to  circuit  court.  §  69,  id .  See  pp.  224,  225,  supra. 

NONFEASANCE,  MISFEASANCE  OR  MALFEASANCE  of  executor  or  administra- 
tor not  to  create  liability  in  certain  cases,  beyond  assets  of  testate  or  intestate. 
§  126,  id.  See  p.  275,  supra. 

CONTRACTS  OF  DECEDENT  may  be  performed  by  the  executor  or  administra- 
tor under  the  directions  of  the  county  court.  §  127,  id.  See  p.  275,  supra. 

INSOLVENT  ESTATES,  after  the  expiration  of  two  years  from  grant  of 
administration  to  be  so  reported  and  entered  of  record ;  persons  entitled  to  be 
paid  pro  rata  ;  costs  then  to  be  paid  by  parties  serving.  §  129,  id.  See  p.  275, 
supra. 


APPENDIX.  343 

JUDGMENTS,  DECREES  AND  ORDERS  may  be  enforced.  County  courts  shall 
have  power  to  enforce  due  observance  of  all  orders,  decisions,  judgments  and 
decrees  made  by  them  in  matters  of  administration,  by  process  for  contempt, 
and  may  fine  and  imprison  offenders  as  fully  as  the  circuit  court  may  do  in 
similar  cases .  §131,  id.  See  p.  276,  supra. 

SERVICE,  SHERIFF  ;  SUBPCENAS,  citations,  notices  and  other  process  to  be 
served  and  returned  by  the  sheriff  or  his  deputies.  §  132,  id.  See  p.  276,  supra. 

FEES  OF  SHERIFF  to  be  the  same  as  for  similar  services  in  the  circuit  court . 
§  132,  id.  See  p.  276,  supra. 

FEES  OF  EXECUTORS  AND  ADMINISTRATORS  to  be  not  exceeding  six  per 
centum  on  proceeds  of  real  estate,  and  three  per  centum  on  proceeds  of  personal 
estate  with  reasonable  allowances  for  collection  and  enforcing  claims.  §  133, 
id.  See  p.  276,  supra. 

CONSTRUCTION  OF  THE  STATUTE.  Executor  to  mean  administrator  and 
administrator  to  mean  executor,  his  to  mean  her,  one  to  mean  two  or  more,  etc., 
whenever  the  same  requires  it  in  applying  the  law  liberally .  §  134,  id.  See 
p .  276,  supra. 

REPEALED  ACTS,  ENUMERATED.     §  135,  id.     See  pp.  7,  277,  supra. 

SATING  CLAUSE  of  repealing  act,  suits  pending  and  rights  accrued,  not 
affected  by  the  repeal.  Id. 

An  alphabetical  synopsis  of  the  act*  in  regard  to  the  administration  of 
estates,  will  be  found  under  STATUTES  in  the  index. 

LOGICAL  SUMMARY  of  the  "  Act  in  regard  to  wills,"  or  the  "  Act  of  March  20, 
1872."  See  p.  7,  supra,  Laws  1872,  pp.  775-781. 

Persons  competent  to  dispose  of  property  by  will  enumerated.  §  1.  See 
pp.  11,  44,  supra. 

Requisites  of  a  will.     §  2.     See  pp.  11,  44,  46,  47,  supra. 

Subscribing  witnesses,  their  duty  to  appear  and  testify.  §  3.  See  pp.  38, 
39,  supra. 

Testimony  of  non-resident  witnesses ;  dedimus.    §  4.     See  pp.  36,  37. 

County  judge  a  witness,  procedure  in  the  circuit  court.  §  5.  See  pp.  45, 46. 
supra. 

Death  or  absence  of  a  witness.     §  6.     See  pp.  30,  39,  supra. 

Probate  of  wills  ;  remedies.    §  7.     See  pp.  16,  43,  supra. 

Interested  witnesses,  how  far  excluded.     §  8.     See  pp.  38,  42,  supra. 

Executing  wills  without  the  State.    §  9.     See  p.  52,  supra. 

They  are  admissible  to  probate.     §  10.     See  p.  52,  supra. 

Venue  or  proper  county  to  probate  the  will.    §  11.    See  p.  14,  supra. 

Custodian  of  the  will  to  produce  it ;  penalty.    §  12.     See  pp.  14, 16,  supra 

Appeals,  procedure.     §g  13,  14.     See  p.  274,  supra. 

Nuncupative  wills,  procedure.     §§  15, 16.     See  pp.  11,  50,  51,  supra. 

Probate  of  nuncupative  will.     §  16.     See  pp.  50,  51,  supra. 

Revocation  of  a  will.     §  17.     See  p.  11,  supra. 

Record  and  preservation  of  wills.    §  18.    See  p.  17,  supra. 

*  Act  of  April  1, 1872,  Laws  1872. 


344  APPEHDIX. 

Debtor  as  executor.    §  19.    See  p.  54,  supra. 

Attesting  creditor  competent.    §  20.    See  p.  46,  supra. 

REPEALING  SECTION.  The  following  acts  and  parts  of  acts  are  hereby  re 
pealed : 

"  Sections  one,  two,  three,  four,  five,  six,  seven,  eight,  nine,  ten,  eleven, 
twelve,  fifteen,  sixteen,  seventeen  and  eighteen,  of  chapter  one  hundred  and 
nine,  of  the  Revised  Statutes  of  1845,  entitled  '  Wills.'  " 

"  An  act  entitled  '  An  act  respecting  the  Probate  of  Wills,'  approved  Febru- 
ary 25,  1845." 

"  An  act  entitled  '  An  act  to  amend  the  one  hundred  and  ninth  chapter  of  the 
Revised  Statutes,  entitled  '  Wills,' '  approved  February  14,  1855,"  and  all  other 
acts  inconsistent  with  the  provisions  of  this  act.  Provided,  that  nothing  con- 
tained in  this  section  shall  be  so  construed  as  to  affect  any  suits  that  may  be 
pending,  or  any  wills  that  may  be  existing,  or  any  rights  that  may  have  ac- 
crued when  this  act  shall  take  effect.  §  21.  See  p.  7,  supra.  See  STATUTES 
in  the  index,  infra. 

The  other  acts  mentioned  at  p.  7,  supra,  are  given  in  full  in  the  foregoing 
pages.  Id. 

PERSONAL  REPRESENTATIVES.  The  terms  "  personal  representatives  "  and 
"  legal  representatives  "  have  given  rise  to  considerable  discussion,  especially 
in  the  construction  of  wills  and  statutes. 

A  careful  examination  of  the  decisions  will,  we  think,  show  that  these  terms 
are,  if  not  quite,  almost  synonymous.  6  Madd.  Ch.  159 ;  5  Ves.  Ch.  402 ;  1 
Madd.  Ch.  108 ;  2  Jarm.  on  Wills,  28 ;  1  Beav.  Rolls.  46;  1  Rugs.  &  M.  Ch.  587  ; 
3  Vesey's  Ch.  486;  3  Brown's  Ch.  224;  1  Teates,  213;  2  id.  585;  2  Dall.  205; 
6  Serg.  &  R.  83 ;  3  Bradf.  45  ;  1  Anst.  Exch.  128 ;  6  Eng.  L.  &  E.  99. 

The  English  cases  are  collated  and  commented  upon,  2  Williams  on  Exec- 
utors, 1049-1061. 

In  Cotton  v.  Cotton,  2  Beav.  67,  the  term  "  legal  representatives  "  was  held  to 
mean  next  of  kin. 

Chapter  93  of  the  9th  and  10th  Victoria  gives  an  action  to  "  the  executor  or 
administrator  of  the  person  deceased  "  in  case  of  death  caused  by  the  wrong- 
ful act,  neglect  or  default  of  another.  1  Gross,  60 ;  Laws  1853,  97 ;  Chicago  v. 
Major,  18  111.  349 ;  Railroad  Co.  v.  Morris,  26  id.  400. 

The  learned  judge  who  gave  the  opinion  in  18  111.  349,  at  p.  358,  says  of  the 
term  "  personal  representatives,"  as  used  in  §  2  of  the  act  of  1853,  "  that  is," 
the  suit  must  be  brought  "  by  the  executors  or  administrators." 

No  point  was  made  upon  the  construction  of  the  term.  It  was  there  held 
that  the  father  of  a  minor  might  take  out  letters  of  administration  upon  the 
deceased  minor's  estate,  and,  as  administrator,  proceed  under  the  statute. 
Railroad  Co.  v.  Morris,  26  111.  400 ;  Railroad  Co.  v.  Shannon,  43  id.  338.  But 
was  administration  necessary  for  the  purpose? 

In  Lynch  v.  Rotan,  39  111.  15,  pp.  75,  270,  supra,  it  was  held  that  the  per- 
sonal property  of  a  minor  vests  immediately  in  the  next  of  kin,  and  there  is 
no  necessity  of  taking  out  letters  of  administration  before  instituting  suit  in 
equity  against  the  sureties  of  a  guardian  for  a  discovery  and  an  account  on 
the  ground  of  maladministration.  If  not  in  equity,  why  at  law  ? 


APPENDIX.  34:5 

Is  it,  then,  necessary  for  the  next  of  kin  to  take  out  letters  of  administra- 
tion on  a  minor's  estate  in  order  to  sue  as  in  Major's  case?  Does  not  the  term 
personal  representatives,  in  the  second  section  of  the  act  of  1853  (1  Gross,  60), 
also  include  in  such  cases  the  next  of  kin  ? 

In  Chicago  v.  Major,  it  was  held  that  the  object  of  section  2  of  this  stat- 
ute is  to  exclude  creditors  from  the  benefit  of  the  damages  recovered  under 
it,  and  to  prevent  the  same  from  becoming  a  part  of  the  estate  of  the  deceased, 
and  that  the  act  is  not  limited  to  the  case  of  those  leaving  widows. 

In  Railroad  Co.  v.  Morris,  it  was  established  that  there  must  be  those  for 
whose  benefit  the  action  is  brought,  and  that  the  existence  of  such  persons 
must  be  averred  and  proved.  1  Hill's  C.  L.  78. 

It  is  difficult  to  see  why  the  term  "  personal  representatives  "  does  not  in- 
clude the  next  of  kin  in  cases  where  there  is  no  necessity  for  administration 
for  other  purposes,  as  in  the  case  of  a  minor. 

The  cases  brought  under  this  statute  rest  exclusively  upon  its  provisions. 
26  111.  400. 

The  rule  of  damages  in  these  actions  is  very  close.     2  Hill's  C.  L.  498. 

The  amount  recovered  under  this  statute  is  not  assets  in  the  proper  accep- 
tation of  that  term.  See  note  u,  p.  92,  supra. 

The  law  requires  no  idle  ceremonies  ;  then,  was  not  the  term  personal  repre- 
sentatives inserted  in  this  statute  to  cover  just  such  cases  including  next  of 
kin  ?  Why  the  difference  in  this  respect  between  our  statute  and  chapter  93, 
9th  and  10th  Victoria  ?  1  Gross,  60. 

We  add  the  following  cases,  which  are  not  inserted  in  the  body  of  the  work : 

THE  STATE  AS  A  CREDITOR  OP  ESTATES  OP  DECEDENTS.  The  State  is  not 
bound  to  wait  until  the  estate  of  a  deceased  is  administered,  and  then  partici- 
pate with  other  creditors  in  the  proceeds,  but  may  enforce  payment,  to  the  ex- 
clusion of  all  other  creditors.  So  of  an  insolvent  estate  in  the  hands  of  trus- 
tees. Dunlap  v.  Gallatin  Co.,  15  111.  7. 

VENDOR  AND  VENDEE.  A  purchaser  of  land  gave  his  promissory  note  for 
an  unpaid  balance  of  the  purchase-money,  the  vendor  covenanting  "  that,  upon 
the  payment  of  said  sum  being  made  at  the  time  and  in  the  manner  aforesaid," 
he  would  convey.  The  vendor  died  without  having  made  a  conveyance.  In 
an  action  by  his  administrator  upon  the  note,  it  was  held  that,  as  the  title  to 
the  land  was  the  only  consideration  for  the  note,  until  that  title  was  made, 
which  the  administrator  could  not  make  without  the  aid  of  chancery,  no  right 
of  action  accrued  on  the  note.  Hulshizer  v.  Lamoreux,  Adm'x,  58  111.  72. 

ADVANCEMENTS.  Where  the  heir  of  an  intestate  has  received  property  from 
such  intestate,  in  his  life-time,  and  by  an  instrument  in  writing,  whether  un- 
der seal  or  not,  acknowledged  the  receipt  thereof  as  his  full  share  of  the 
estate,  the  property  so  received,  not  having  been  charged  to  him,  and  the 
transaction  being  untainted  with  fraud,  must  be  held  to  be  in  full  payment 
and  satisfaction  of  his  share  of  the  estate,  by  express  agreement. 

The  provisions  of  sections  63  and  164  of  the  statute  of  wills,  bearing  upon 
the  subject  of  advancements,  have  no  application  to  a  case  of  this  character. 
Bishop  v.  Davenport,  58  111.  105. 

But  in  such  case,  if,  at  the  time  of  the  execution  of  the  release,  the  person 
giving  it  was  &femme  couverte.snch  agreement  ia  void, or,  jf  a  minor,  it  is  not 
44 


34:6  APPENDIX. 

binding  upon  him.  Nor  will  it  avail  any  thing  that  such  release  was  executed 
by  a  married  woman,  jointly  with  her  husband.  The  husband  has  no  author- 
ity to  make  an  agreement  of  that  character,  which  will  bind  his  wife.  Bishop 
v.  Davenport,  58  111.  105. 

ATTESTATION  OP  "WILLS.  The  statute  does  not  require  that  the  attesting 
witnesses  to  a  will  should  be  in  the  presence  of  each  other  when  they  sign  it. 
Flinn  v.  Owen,  58  111.  111. 

CONSTRUCTION  OF  A  PARTICTJLAK  INSTRITMENT.  B  and  H  were  partners  in 
business.  H  was  taken  sick,  and  made  his  will,  by  the  terms  of  which  it  was 
provided,  that  if  B  would  deliver  over  to  W,  the  executor  named  in  the  will, 
certain  notes  which  were  held  by  the  firm,  for  the  benefit  of  H's  daughter, 
and  would  pay  H's  debts  after  his  decease,  B  should  have  all  the  remainder  of 
H's  estate,  including  the  firm  property.  Before  signing  the  will,  H  caused  it 
to  be  read  to  B,  who  thereupon  verbally  accepted  the  terms  proposed,  and  it 
was  then  executed.  After  H's  decease,  B  demanded  an  appraisement  of  the 
property,  to  see  if  he  would  accept  of  it  under  the  terms  proposed,  which  was 
had,  and  he  again  accepted,  and  delivered  over  the  notes  to  W,  and  retained 
the  remainder  of  the  property  belonging  to  the  estate.  B  failed  to  pay  the 
debts,  and  they  were  proved  up  against  the  estate  of  H,  and  paid  by  W,  the 
executor.  Afterward  B  and  W  died,  and  the  administrator  of  W's  estate  filed 
this  claim  against  the  estate  of  B,  to  which  was  pleaded  the  statute  of  limi- 
tations and  the  statute  of  frauds.  Held,  that  the  statute  of  limitations  con- 
stituted no  bar  to  the  act ;  that  a  direct  trust  was  created  by  the  express  terms 
of  the  will,  and  that  B  received  the  property  under  the  conditions  imposed, 
and  entered  upon  the  discharge  of  his  duties,  and  that  the  relation  of  trustee 
and  cestui  que  trust  was  thereby  created  between  the  parties,  and  not  that  of 
debtor  and  creditor.  Alhretch  v.  Wolf,  58  111.  186. 


RULES  OF  PRACTICE 


PROBATE  COURT  OF  COOK  COUNTY. 


Ordered,  That  the  following  rules  of  practice  be,  and  they  are, 
hereby  adopted  in  this  court  : 

ADMINISTRATION. 

PROOF   OF   WILL. 

RULE  1.  The  testimony  taken  in  the  matter  of  the  proof  of  any 
last  will  and  testament  shall  be  reduced  to  writing,  and  filed  with 
the  clerk  of  the  court. 

ORDER    OF   INVENTORY  —  WIDOW'S   SELECTION   AND   SALES   BILL. 

EULE  2.  The  inventory  widow's  selection  and  sales  bill  shall  fol- 
low the  order  in  which  the  articles  are  set  down  in  the  bill  of 
appraisement. 

ADJUSTMENT   OF   CLAIMS. 

RULE  3.  The  proof  of  posting  and  publishing  notices  for  the 
adjustment  of  claims  shall  be  filed  with  the  clerk,  on  or  before  the 
first  day  of  the  term  to  which  claimants  are  notified  and  requested  to 
appear.  The  clerk  shall  keep  a  list  of  all  such  proofs  of  posting  and 
publishing  adjustment  notices  each  term,  in  the  order  filed,  and  the 
court  will  take  up  and  dispose  of  the  same  in  the  order  of  such 
list. 

MANNER   OF    PRESENTING    CLAIMS. 

RULE  4.  Claims  against  estates  shall  be  presented  as  follows  :  If 
at  or  before  the  regular  adjustment,  by  filing  a  bill  of  items  of  the 
claim  with  the  clerk.  If  after  the  adjustment  term,  by  filing  a 
copy  of  the  claim,  together  with  a  praBcipe  for  a  summons  to  the 
executor  or  administrator,  or  by  filing  with  such  claim  the  appear- 
ance, in  writing,  of  the  executor  or  administrator. 


348  RULES   OF  THE 

The  heir,  or  any  other  person  interested  in  the  estate,  wishing  to 
contest  any  claim  filed,  must  enter  an  appearance,  in  writing,  in 
the  matter  of  such  claim. 

CLAIM   DOCKET   AND   TRIAL   OF   CLAIMS. 

KULE  5.  The  clerk  shall  prepare  a  claim  docket  each  term,  and 
the  court  will  commence  the  call  of  such  docket  for  the  trial  of 
claims,  on  the  fourth  Monday  of  each  term,  and  continue  such  call, 
from  day  to  day,  until  concluded. 

DEFAULT  OR  NEGLECT  OF  EXECUTOR  OR  ADMINISTRATOR. 

EULE  6.  Upon  the  failure  of  any  executor  or  administrator  to 
present  his  inventory  and  appraisement  to  the  court  within  three 
months,  or  cause  an  order  ol  adjustment  of  claims  to  be  entered 
within  six  months,  or  to  present  his  account  within  thirteen  months 
from  the  date  of  his  letters,  and  every  year  thereafter,  until  the 
estate  of  his  decedent  is  fully  administered  and  settled,  the  court 
will  order  a  citation  to  issue,  and  if  the  executor  or  administrator 
fail  to  appear  as  required  by  the  citation,  the  court  will  order  an 
attachment  against  the  executor  or  administrator,  and  enforce  the 
performance  of  such  neglected  duty. 

NOTICE   TO   HEIRS    OF   FINAL   ACCOUNT. 

RULE  7.  No  executor  or  administrator  shall  be  discharged  from 
the  duties  and  responsibilities  of  his  appointment,  or  have  his  final 
account  approved  (where  the  heirs  at  law,  residuary  and  unpaid 
legatees,  if  any,  do  not  enter  their  appearance  in  writing  in  such 
final  accounting),  unless  he  shall  give  notice  to  the  heirs  at  law, 
residuary  and  unpaid  legatees,  if  any,  of  the  decedent,  of  the  time 
of  his  intended  application  to  the  court  for  the  approval  of  such 
final  account,  as  follows  : 

When  the  heirs  at  law,  residuary  or  unpaid  legatees,  if  any,  are 
residents  of  Cook  county,  personal  service  of  a  copy  of  such  notice 
shall  be  made,  and  in  the  event  of  the  temporary  absence  from  Cook 
county  of  such  resident  heirs  at  law,  residuary  or  unpaid  legatees, 
if  any,  a  copy  of  such  notice  shall  be  left  at  the  usual  place  of 
abode  of  such  heirs,  residuary  or  unpaid  legatees,  if  any,  with  some 
person  of  the  family  of  the  age  of  ten  years  or  upwards,  and  inform- 
ing such  person  of  the  contents  thereof,  such  service  to  be  at  least 
ten  days  before  such  application. 


PROBATE  COURT  OF  COOK  COUNTY.  349 

"When  such  heirs  at  law,  residuary  or  unpaid  legatees,  if  any, 
reside  without  the  limits  of  Cook  county,  and  in  any  of  the  United 
States  or  Territories,  a  copy  of  such  notice  shall  be  published  at 
least  once  in  some  newspaper  published  in  the  city  of  Chicago,  at 
least  thirty  days  before  such  application.  When  such  heirs  at  law, 
residuary  or  unpaid  legatees,  if  any,  reside  without  the  limits  of  the 
United  States  and  Territories,  or  whose  names  and  places  of  resi- 
dence, either  or  both,  are  unknown  to  such  executor  or  administra- 
tor, such  notice  shall  be  published  at  least  once  in  some  newspaper 
published  in  the  city  of  Chicago,  at  least  sixty  days  before  such 
application  ;  and  where  the  heirs  at  law,  residuary  or  unpaid 
legatees,  if  any,  or  any  of  them,  are  not  residents  of  Cook  county, 
such  executor  or  administrator  shall  make  and  file  with  the  clerk  of 
the  court  his,  her  or  their  affidavit,  or  the  affidavit  of  some  one  of  them, 
setting  forth  the  names  and  post-office  address  of  such  heirs  at  law, 
residury  or  unpaid  legatees,  if  any,  or  if  the  same  be  unknown,  thus 
stating  the  fact ;  and  where  the  names  and  post-office  address  are  set 
forth  in  such  affidavit,  such  executor  or  administrator  shall  cause  a 
copy  of  such  notice  to  be  mailed,  postage  paid,  to  such  heirs  at  law, 
residuary  or  unpaid  legatees,  to  such  address  by  the  clerk  of  this 
court  within  five  days  after  such  publication,  and  a  certificate  of 
such  mailing  to  be  made  by  the  clerk  and  filed  in  the  proper  estate. 

NOTICE   OF   RESIGNATION   OF   EXECUTOR   OR   ADMINISTRATOR. 

KULE  8.  Upon  the  petition  of  any  executor  or  administrator  to 
resign  his  trust,  notice  thereof,  and  of  the  time  of  hearing,  shall 
be  given  to  the  legatees,  devisees  or  distributees,  and  to  his  co- 
executor  or  co-administrator,  and  the  sureties  on  his  bond,  if  any, 
in  the  same  manner  as  notice  is  required  to  be  given  to  the  heirs 
at  law,  residuary  and  unpaid  legatees,  in  case  of  final  account,  as 
provided  by  rule  seven,  unless  such  legatees,  devisees  or  distributees, 
and  co-executor  or  co-administrator,  and  the  sureties  on  his  bond 
enter  their  appearance  in  writing  in  such  matter. 

PROOF   OF   HEIRSHIP. 

EULE  9.  Proof  of  heirship  for  the  purpose  of  distribution  and 
final  settlement  of  an  estate  shall  be  made  by  the  testimony  of 
witnesses  examined  in  open  court,  reduced  to  writing  and  filed,  or 
by  testimony  taken  in  pursuance  of  a  dedimus  potestatem,  issued 
for  that  purpose,  or  by  a  certified  copy  of  a  decree  of  a  court  of 
record,  finding  the  heirs  at  law  of  the  decedent 


350  RULES   OF  THE 

EXECUTOR   AND    ADMINISTRATOR'S   REPORT. 

RULE  10.  Every  executor  and  administrator's  account  shall  be 
accompanied  with  a  written  report,  under  oath,  briefly  stating  the 
condition  of  the  estate,  the  amount  of  receipts  and  expenditures 
and  the  balance,  if  any,  and  the  present  responsibility  and  suffi- 
ciency of  the  sureties  on  the  bond  of  such  executor  or  administra- 
tor. 

GUARDIANSHIP. 

APPOINTMENT   OF   GUARDIAN. 

RULE  11.  No  application  for  the  appointment  of  a  guardian 
(other  than  applications  by  the  father,  or  by  the  mother,  if  he  be 
dead)  will  be  entertained  when  the  infant  has  a  father  or  mother 
living  in  this  State,  unless  upon  written  notice  of  such  intended 
application  to  the  father,  or  if  the  father  be  dead,  to  the  mother, 
and  to  both  if  they  be  living  apart  in  this  State,  setting  forth  the 
time  when  the  same  will  be  heard,  which  notice  shall  be  given  not 
less  than  three  days  prior  to  such  application,  if  the  parent  or 
parents  reside  in  Cook  county,  and  not  less  than  ten  days  if  non- 
residents of  Cook  county,  provided  that  no  such  notice  shall  be 
required  when  such  parent  or  parents  enter  their  appearance  and 
consent  to  an  immediate  hearing. 

GUARDIAN'S  INVENTORIES  AND  ACCOUNTS. 

RULE  12.  Upon  the  failure  of  any  guardian  to  return  to  the 
court,  verified  by  the  affidavit  of  the  guardian,  a  true  and  perfect 
inventory  of  the  real  and  personal  estate  of  the  ward,  including 
therein  a  description  of  the  real  estate,  its  probable  value  and 
rental,  and  whether  incumbered.  and,  if  so  incumbered,  how  and 
for  how  much  ;  what  amount  of  money  is  on  hand,  all  personal 
property,  including  annuities  and  credits  of  the  ward,  designating 
them  as  good,  doubtful  or  desperate,  as  the  case  may  be,  within 
sixty  days  after  appointment,  or  at  the  expiration  of  one  year  from 
his  or  her  appointment,  and  at  least  once  every  three  years  there- 
after, and  as  much  oftener  as  the  court  may  require,  settle  his  or 
her  accounts  with  the  court,  such  guardian  will  be  cited  by  the 
court,  and  the  performance  of  such  delinquent  duty  enforced. 


PROBATE  COURT  OF  COOK  COUNTY.  351 

LEASING  WARD'S  REAL  ESTATE. 

EULE  13.  The  court  will,  upon  petition  of  the  guardian,  order 
that  the  guardian  lease  all  the  ward's  real  estate;  but  before  deliv- 
ering any  lease  or  possession  to  the  lessee,  that  the  guardian  obtain 
the  written  approval  of  the  judge  of  this  court  indorsed  on  the 
lease;  but  no  such  approval  will  be  given  until  testimony  has  been 
taken  in  open  court,  showing  the  rental  value  of  the  real  estate. 

FINAL   SETTLEMENT   OF   GUARDIAN   WITH   WARD. 

RULE  14.  No  guardian  shall  be  discharged  from  the  duties  of 
his  appointment  on  final  settlement  with  his  ward,  linless  such 
ward  appears  before  the  court  and  acknowledges  such  settlement 
in  full  in  open  court ;  provided,  where  such  facts  are  disclosed,  by 
affidavit  filed  with  the  clerk,  as  render  the  personal  attendance  of 
the  ward  impracticable,  and  the  court  shall  be  satisfied,  from  evi- 
dence produced  in  open  court,  that  such  final  settlement  is  just 
and  equitable,  and  that  the  ward  is  in  possession  of  all  his  or  her 
estate,  such  personal  attendance  of  the  ward  may  be  waived  by  the 
court. 

GUARDIAN'S  REPORT. 

RULE  15.  Every  guardian's  account  shall  be  accompanied  with 
a  Avritten  report  of  the  guardian,  verified  with  his  affidavit,  setting 
forth  the  manner  in  which  any  funds  under  his  control  belonging 
to  his  ward  are  invested,  the  debts,  credits,  and  effects  of  the 
ward's  estate,  so  iar  as  the  same  have  come  to  his  knowledge,  and 
the  present  responsibility  and  sufficiency  of  the  sureties  on  his 
bond,  and  if  the  guardianship  be  of  the  custody  and  tuition  of 
the  minor,  shall  state  the  length  of  time  the  ward  has  attended 
school,  and  where,  since  his  appointment,  or  last  report. 

CONSERVATORS. 

DEFAULT   OR   NEGLECT   OF   CONSERVATORS. 

RULE  16.  Upon  the  failure  of  any  conservator  to  return  to  the 
court,  verified  by  the  affidavit  of  such  conservator,  a  true  and  per- 
fect inventory  of  the  real  and  personal  estate  of  his  ward,  with  a 
description  of  the  real  estate,  its  probable  value  and  rental,  and 
stating  whether  the  same  is  incumbered,  and  if  incumbered,  how 
and  for  how  much,  what  amount  of  money  is  on  hand,  and  also 
containing  a  list  of  all  personal  property,  including  annuities  and 


352  KULES    OF  THE    PROBATE    COURT    OF  COOK  COUNTY. 

credits  of  the  ward,  designating  them  as  good,  doubtful  or  despe- 
rate, as  the  case  may  be,  within  sixty  days  after  his  appointment,  or 
at  the  expiration  of  one  year  from  his  appointment,  and  at  least 
once  each  year  thereafter,  and  as  much  oftener  as  the  court  may 
require,  to  "settle  his  accounts  as  conservator  with  the  court,  will 
be  cited  by  the  court,  and  the  performance  of  such  delinquent  duty 
enforced. 

LEASING   BY    CONSERVATOR. 

RULE  17.  The  court  will,  upon  the  petition  of  the  conservator, 
order  that  the  conservator  lease  all  his  ward's  real  estate,  but  be- 
fore delivering  any  lease  or  possession  to  the  lessee,  that  the  conserva- 
tor obtain  the  written  approval  of  the  judge  of  this  court,  indorsed 
on  the  lease,  but  no  such  appoval  will  be  given  until  testimony  has 
been  taken  in  open  court,  showing  the  rental  value  of  the  real 
estate. 

MISCELLANEOUS. 

PETITIONS   AND   MOTIONS. 

RULE  18.  Petitions  and  motions  will  be  heard  upon  the  coming 
in  of  the  court  in  the  morning  and  afternoon,  and  all  motions  and 
other  applications  to  the  court  shall  be  made  in  writing  and  filed 
with  the  clerk,  and  when  not  based  on  matters  which  appear  of 
record,  the  facts  must  be  supported  by  affidavit. 

APPEARANCE. 

RULE  19.  Whenever  any  heir  at  law,  legatee,  creditor,  or  other 
person  not  a  party  to  the  record,  desires  to  contest  or  be  heard  in 
any  matter  before  the  court,  such  heir  at  law,  legatee,  creditor,  or 
other  person,  shall  first  enter  an  appearance  in  writing  in  such 
matter,  and  file  the  same  with  the  clerk. 

RULE   TO   PLEAD. 

RULE  20.  In  all  cases  (except  citations  and  adjustment  of  claims) 
commenced  by  summons,  the  defendant,  if  served  ten  days  before 
the  return  day  of  such  summons,  shall  plead  on  or  before  the  open- 
ing of  court,  on  the  third  day  of  the  term  to  which  such  summons 
is  made  returnable. 

RULE  21.  The  clerk  shall  have  the  foregoing  rules,  and  all 
rules  of  this  court,  hereafter  entered,  carefully  transcribed  in  a 
book  to  be  kept  for  that  purpose,  in  the  order  of  date  in  which 
they  shall  be  respectively  entered. 


INDEX 


A. 

ABATEMENT  AND  REVIVAL, 

administrator  how  made  a  party,  87,  289,  290. 
ACCEPTANCE, 

of  trust  by  the  executor,  49. 

of  resignation,  equivalent  to  revocation  of  letters,  100. 
ACCOUNT, 

the  books  of,  by  the  decedent,  275. 

ACCOUNTS,  230. 

I.  By  the  executor  or  administrator,  238,  242.  % 

II.  By  the  guardian  and  conservator,  243,  250. 

I.  —  BY  THE  EXECUTOR  OR  ADMINISTRATOR,  238,  242 

1.  General  instructions  to  the  executor  or  administrator,  238. 

2.  Settlements  to  be  made  annually  at  least,  238,  239. 

3.  Apportionments  to  be  made,  239, 

4.  Settlement  may  be  enforced,  239,  240. 

5.  Devastavit,  etc.,  240. 

6.  Administrator's  account,  240,  241. 

7.  Procedure  for  administrator  or  executor  when  cited  to  account, 

241,  242. 

8.  Form  of  account,  242. 

II. — BY  .GUARDIAN  AND  CONSERVATOR,  243-250. 

1.  Guardian  must  account,  243. 

2.  He  must  pay  over  to  those  entitled  at  the  expiration  of  his  trust, 

243. 

3.  Accounts  must  be  filed,  243. 

4.  Instructions  in  general  to  guardians  and  conservators,  243,  244. 

5.  Accounts,  how  kept,  244,  245. 

6.  Form  of  report  to  the  court  in  accounting,  245. 

7.  Another  form,  245. 
ACQUIESCENCE, 

infants  not  affected  by,  103. 

See  Laches. 
ACQUISITION  OF  LANDS, 

subsequently  to  the  making  of  a  will,  effect  of,  42. 
ACT, 

April  1,  1872,  and  other  acts,  7. 
See  Appendix;  Statutes. 
45 


354  INDEX. 

ACTION, 

right  of,  in  cases  of  death  caused  by  negligence,  etc.,  344. 
.  See  Appendix. 

ACTIONS, 

by  executors  and  administrators,  275,  281,  283,  289. 
by  conservators,  141. 
on  administrators'  bonds,  81,  289. 
by  and  against  minors,  104-107. 

which  survive  (§  123,  act  of  April  1,  1872),  192,  281,  282,  289,  290. 
See  Claims. 

AD  LITEM,  GUARDIAN, 

appointment,  powers  and  duties  of,  116,  117,  133,  134. 
ADMINISTRATION, 

not  always  necessary,  75,  76,  344. 

the  regular  grant  of,  68,  69. 

grant  of,  to  be  preceded  by  proof  of  death  and  intestacy,  67,  68. 
ADMINISTRATOR, 
,    the  term  defined,  65. 

the  personal  representative  of  the  deceased,  83,  162. 
See  Appendix. 

how  to  be  appointed,  76,  77. 

de  facto,  the  acts  of,  cannot  be  collaterally  questioned,  76. 

de  bonis  non,  84,  282,  283. 

to  collect,  71. 

appointment  and  powers  of,  71,  278. 

the  public,  70-72. 

with  the  will  annexed,  17. 

ADMINISTRATOR'S  BONDS, 
actions  on,  81. 
See  Forms. 

ADMINISTRATORS, 

purchasing  at  their  own  sale,  guilty  of  fraud,  per  se,  96,  296,  303,  304. 
appointment  of,  64-82. 

1.  Administrators  virtually  executors,  65,  66. 

2.  Of  several  kinds,  general  and  special,  66. 

3.  An  intestate,  66. 

4.  Special  administrators,  67. 

5.  Administrator  de  bonis  non,  67. 

6.  Administrator  pendente  lite,  67. 

7.  Letters  of  administration  are  a  grant  of  power,  67. 

8.  Intestacy  and  death  of  decedent  must  be  proved,  67,  68. 

9.  How  proved,  68. 

10.  The  English  Statutes  and,  68,  69. 

11.  Our  statute  compared,  68,  69. 


INDEX.  355 

ADMINISTRATORS—  Continued. 

12.  The  jus  representations,  69. 

13.  Degrees  of  consanguinity  according  to  the  civil  law,  70,  268. 

14.  The  public  administrator  appointed  by  the  governor,  by  and  with 

the  consent  of  the  senate,  70. 

15.  When  the  estate  may  be  committed  to  the  public  administrator, 
70,  71. 

16.  His  duties  in  general,  71. 

17.  His  expenses  preferred,  71. 

18.  Removal  in  special  cases,  on  appearance  of  parties  entitled, 
within  six  months  after  his  appointment  71. 

19.  To  advertise  on  settlement,  etc.,  71. 

20.  Administrator  to  collect,  71,  72. 

21.  Letters  to  collect,  72. 

22.  Bond  of  administrator  to  collect,  72,  73. 

23.  His  oath,  73 . 

24.  Who  may  be  administrators  generally,  73-76. 

1.  They  should  be  of  lawful  age  and  legally  competent,  73. 

2.  The  preference  conferred  by  statute,  74. 

3.  Waiver  of  juris  representation^,  74. 

4.  Who  to  administer,  on  the  death  of  the  surviving  husband,  as 

administrator  de  bonis  non  of  his  deceased  wife's  estate, 
quaere?  74,  75. 

5.  Next  to  kin,  the  relatives  generally,  75 . 

6.  Renunciation  or  relinquishment,  75,  76. 

25.  Venue,  the  proper  county,  76. 

26.  Practice  —  how  to  be  appointed  administrator,  76,  77. 

27.  Petition  for  letters  of  administration,  77. 

28.  Affidavit  of  death,  intestacy,  etc.,  77. 

29.  The  administrator's  bond,  77,  78,  79. 

30.  And  letters  of  administration,  79. 

31.  The  oath,  79. 

32.  Form  of  bond  by  administrator  with  the  will  annexed,  80. 

33.  Oath  of,  80. 

34.  Additional  bond,  80,  81. 

35.  Decisions  in  Illinois,  81. 

36.  Foreign  executors  and  administrators,  how,  where  and  when 
they  may  act,  limitations  and  restrictions,  82. 

the  powers,  duties,  rights  and  liabilities  of,  83-96. 

1.  The  scope  of  the  office  of  administrator,  83. 

2.  Administrators  are  personal  representatives  of  their  intestates,  83. 

3.  Decisions  of  the  supreme  court  of  the  State  of  Illinois,  84-96. 
See  Resignation. 

ADVANCEMENTS,  103,  345. 
See  Descent. 


356  INDEX. 

ADVERTISEMENT,  51,  290. 

See  Constructive  Service ;  Personal  Estate ;  Notice. 

AFFIANT'S  OATH,  292. 
AFFIDAVIT, 

for  a  dedimus,  37. 

requisites  o£,  297. 

See  Probate  Record;  Forms. 

AFFIRMATION, 
form  of,  293. 

AGE, 

males  at  21,  females  at  18,  are  of  lawful,  102. 

AGREEMENTS,  160,  161. 
See  Contracts. 

ALLEGATIONS, 

of  fact,  how  to  be  made,  305. 
ALPHABETICAL  LIST  OF  FORMS,  301. 

See  Forms. 
APPEARANCE, 

by  heirs  to  contest  claims  should  be  in  the  name  of  the  administrator,  88, 

APPEAL, 

may  be  taken  from  the  order  admitting  a  will  to  probate,  30. 

APPEALS,  271J  273. 

1.  Appeals  when  allowed  in  cases  in  the  administration  of  estates,  224, 

271. 

2.  In  guardianship,  271 . 

3.  Praying  appeal,  271,  272. 

4.  How  prayed,  272. 

5.  Bond  on  appeal,  272 . 

6.  Security  for  costs  by  non-residents,  272. 

7.  The  requisites  of  the  bond,  272,  273. 

8.  The  bill  of  exceptions,  273. 

9.  In  cases  of  wills,  273 . 
APPENDIX,  339. 
APPOINTMENT, 

of  an  attorney  by  an  infant  absolutely  void,  102. 

letters  testamentary  as  evidence  of  the,  of  the  executor,  50. 

See  Petition. 

APPRAISEMENT,  THE,  172-174. 
ARBITRATION, 

administrator  cannot  submit  a  claim  to,  89. 

ASSETS, 

what  are,  92,  93,  94,  275. 


357 

ASSETS—  Continued. 
See  53  III.  224. 

See  Personal  JSstate  ;  Real  Estate. 
personal  property,  157-185. 

1.  Things  personal,  158. 

2.  Mercantile  transactions,  158. 

3.  Insufficiency  of  assets,  158. 

4.  Distinctions  between  things  personal  and  things  real,  158,  159. 

5.  Conversion  of  real  property ;  special  proceedings  necessary  for 
the  purpose  against  the  property  and  also   against   the  heir, 
158,  159. 

6.  The  practice  in  such  cases   governed  by  the  superior  courts, 
through  the  right  of  appeal,  159. 

7.  The  absolute  title  and  qualified  right  of  the  administrator  or 
executor  to  the  assets  of  the  decedent,  159. 

8.  The  assets  considered,  159. 

9.  Contract  in  general,  159,  160,  161. 

10.  Contracts  defined,  160,  161. 

11.  Consideration  essential  to,  160. 

12.  Sale  or  exchange,  161,  162. 

13.  Fraud  annuls  all  contracts  which  it  infects,  162. 

14.  Warranty,  162. 

15.  Caveat  emptor,  162. 

16.  Guaranty,  statute  of  frauds,  162,  163. 

17.  Bailment,  pawn,  163. 

18.  Lien,  163. 

19.  Hiring  and  borrowing,  164. 

20.  Debts,  164. 

21.  Bonds,  164. 

22.  Bills  of  exchange,  164,  165. 

23.  Cheques,  165,  166. 

24.  Promissory  notes,  166. 

25.  Insurance  policies,  166,  167. 

26.  Bottomry,  167. 

27.  The  care  and  judgment  required  in  the  management  of  the 
assets,  167. 

insufficiency  of,  158,  159-165. 
ASTOR,  GRIG-NON  v.,  2  How.  193. 

discussed,  6,  62,  63. 
ATTACHMENT,  32. 
ATTENDANCE, 

of  the  sheriff,  274. 

to  compel  the  production  of  a  will,  16. 

for  a  witness,  32. 

for  contempt,  when  the  remedy  to  compel  distribution,  87,  88. 


358  IXDEX. 

ATTESTED, 

a  will  must  be,  40,  47,  346. 

ATTESTING, 

creditor  may  be  a  competent  witness,  46. 
ATTORNEY, 

a  minor  cannot  appoint  an,  102. 

rendering  services  for  an  executor  acquires  claim  against  the  estate,  88. 
AWARD,  WIDOWS',  217,  218. 

B. 

BAILEES, 

lien  of,  163. 
BAILMENT,  163. 
BANK  NOTE,  166. 
BARGAIN, 

when  complete,  162. 
BILL,  BURNT  RECORDS',  334. 
BILL  OF  EXCEPTIONS,  334. 
BILL  OF  EXCHANGE,  164. 
BILL  OF  SALE,  183. 
BOND,  164. 

an  infant  connot  bind  himself  by,  102. 

executor's,  how  approved,  30. 

to  be  filed  and  recorded,  30. 

of  the  executor,  the  form  prescribed,  30. 

joint  and  several,  279. 
See  forms. 

BOOKS  OF  ACCOUNT,  275. 
BORROWING,  HIRING  AND,  164. 
BOTTOMRY,  167. 
BREACH, 

of  administrator's  bond,  joint  or  several  action  will  lie  on,  81. 
BUILDINGS, 

when  personal  estate,  189. 

BURIALS, 

the  law  of,  190. 

BURNT  RECORDS'  BILL,  334. 

CARE, 

and  judgment  of  the  prudent  and  discreet,  essential  in  administration,  167 
CAPACITY,  TESTAMENTARY, 

must  be  shown,  43,  44,  45,  47. 


INDEX.  359 

CA  VEAT  EM-PTOR,  162. 
CERTIFICATE 

of  proof  of  a  will,  46. 

of  the  execution  of  a  dedimus,  35-38. 

to  be  indorsed  on  a  deposition,  48. 

of  oaths  of  attesting  witnesses,  effect  as  evidence,  43. 

of  the  clerk  attached  to  letters  testamentary,  49,  50. 

of  foreign  will,  as  evidence,  42. 

of  publication,  51,  290. 

See  Forms. 
CHAMBER 

in  a  house  may  be  separate  real  estate,  189. 

CHANCERY, 

the  probate  of  the  will  may  be  contested  by  bill  in,  30. 

heirs  should  proceed  by  bill  in,  if  dissatisfied  with  the  settlement  of 

estate  by  the  administrator,  88. 
CHANCERY  JURISDICTION,  94,  95,  96. 
§  34  of  the  conveyance  act,  construed,  94. 
specific  performance,  etc.,  94,  95. 

See  SRWs  Chancery,  p.  283-286. 
CHANGE  OF  VENUE,  224,  225. 

CHATTELS,  GOODS  AND,  159. 
defined,  83,  160,  161. 
See  Personal  Estate. 

CHATTELS  REAL,  165,  191. 
CHECK  OR  CHEQUE,  165,  166. 

CIRCUIT  COURT, 

creditors  of  an  intestate  may  sue  in  the,  in  the  first  instance,  88. 
See  Appeals. 

CITIZEN, 

of  another  State  may  come  in  and  cause  administration  to  be  granted, 

when  and  how,  82. 
See  Foreign  Executor,  etc. 

CITATION, 

and  notice  to  heirs  and  legal  representatives,  50,  51. 
See  Forms. 

CIVIL  LAW, 

degrees  of  consanguinity  by  the,  70,  257, 278. 
See  Descent. 

CLAIMS, 

practice  in  presenting,  87. 

heirs  may  appear  in  name  of  administrator  and  contest,  88. 


360  LffDEX. 

CLAIMS—  Continued. 

defenses  to,  may  be  defenses  to  application  to  sell  real  estate,  88. 
desperate,  176,  177,  178,  179. 
against  estates,  222-232.- 

1.  Notice  of  term  fixed  by  executor  or  administrator  for  adjust- 

ment of;  procedure  prescribed ;  jury  trial,  etc.,  222,  223. 

2.  When  a  creditor  may  file  his  claim,  summons  to  issue  to  the 

executor  or  administrator,  223. 

3.  Return  terms,  cause  to  be  continued  if  summons  be  not  served 

ten  days  before,  223. 

4.  Procedure  prescribed,  223,  224. 

5.  Claimant  may  be  compelled  to  make  oath  that  his  "  claim  is  just 

and  unpaid,"  224. 

6.  Evidence,  224. 

7.  Counter-claim,  224,  236. 

8.  Claims  not  yet  due  may  be  proven,  224,  236. 

9.  Appeal  may  be  taken  by  either  party  to  the  circuit  court,  224. 

10.  Change  of  venue  to  circuit  court  if  county  judge  be  interested, 

or  a  witness  in  any  case  or  matter  pending  in  his  court,  224, 
225. 

11.  Adjudication  of  claims,  instructions  to  executors  or  administra- 

tors, 225. 

12.  Administrator's  notice,  225-228. 

13.  Creditor's  rights,  how  enforced,  228,  229. 

14.  Time  in  which  claims  are  to  be  presented,  229. 

15.  The  decision  collated,  229-232. 

CLERK'S  ENTRIES, 

in  probating  a  will,  48. 

See  Forms. 
CLOSING,  OPENING  AND, 

of  terms  and  sessions  of  court,  291. 

CO-EXECUTORS  OR  ADMINISTRATORS, 

several  may  be  appointed,  282.  • 

COMMON  LAW, 

the,  deeply  rooted  in  our  usages  and  institutions,  186. 
See  Descent. 

COMPETENCY, 

of  attesting  creditor,  46. 
See  Witnesses,  287,  288. 

COMPROMISE, 

of  debts,  administrator  may  make,  86. 

CONSANGUINITY, 

degrees  of,  as  affecting  the /us  representationis,  70. 
degrees  of,  268. 


ISTDEX.  361 

CONSERVATORS,  139-147. 

1.  When  a  conservator  may  be  appointed,  139. 

2.  Summons  to  be  issued,  139. 

3.  Conservator  to  give  bond,  140. 

4.  Bonds  may  be  put  in  suit,  140. 

5.  Duties  of  conservator,  generally,  140. 

6.  To  take  charge  of  the  estate  of  his  ward,  and  return  inventories,  140. 

7.  Requisites  of  an  inventory,  140. 

8.  Conservator  to  settle  his  account  at  least  annually,  140. 

9.  On  final  settlement  to  deliver  estate  and  title  papers,  141. 

10.  The  final  accounting,  141. 

11.  Conservator  to  settle  all  accounts  of  his  ward,  and  sue  in  his  own 
name,  141. 

12.  May  with  consent  of  court  perform  the  personal  contracts  of  his  ward, 

141. 

13.  To  appear  and  represent  his  ward  in  all  suits  and  proceedings,  141. 

14.  Contracts  of  a  lunatic  after  finding  of  a  jury,  void  as  to  the  lunatic,  141. 

15.  Contracts  made  before  such  finding,  when  may  be  avoided,  142. 

16.  Trading,  bartering  or  gaming  with  a  lunatic,  etc.,  prohibited,  142. 

17.  Conservator  to  frugally  manage  the  estate,  142. 

18.  Investments  to  be  made,  142. 

19.  Conservator  may  lease  his  ward's  estate,  142. 

20.  He  may  by  leave  of  the  county  court  mortgage  the  same,  142. 

21.  Petition  for  leave  to  be  filed,  142. 

22.  Strict  foreclosure  prohibited  and  redemption  prescribed,  142,  143. 

23.  Sale  of  real  estate  may  on  petition  of  the  conservator  be  ordered  by 
the  county  court,  143. 

24.  The  petition,  143. 

25.  Notice  of  application,  143. 

26.  Procedure  as  in  chancery,  143. 

27.  Notice  of  sale,  143. 

28.  Report  of  sale  and  deed,  143. 

29.  Account  of  proceeds,  144. 

30.  Sureties  of  the  conservator  to  be  looked  after  and  kept  sufficient,  144. 

31.  Conservator  may  be  required  to  give  counter  security,  144. 

32.  Conservator  may  be  removed,  144. 

33.  To  be  first  summoned,  144. 

34.  He  may  in  a  proper  case  resign,  144. 

35.  Another  conservator  may  be  appointed,  144,  145. 

36.  Fees  and  compensation  of  the  conservator  to  be  reasonable  and  just, 
145. 

37.  Conservator  may  be  discharged  and  the  property  restored  to   the 
owner  on  his  restoration  to  reason  or  reformation,  145. 

38.  Notice  of  application  to  be  given  to  the  conservator,  145. 

39.  Procedure  on  the  application,  145. 

46 


362  INDEX. 

CONSERVATORS—  Continued. 

40.  Appeals,  145,  146. 

41.  Conservator,  guardian,  curator,    or  committee  of  any  non-resident 
idiot,  lunatic,  insane  or  distracted  person,  spendthrift  or  drunkard, 
may  collect  debts  and  recover  property  of  ward  in  this  state,  146. 

42.  Application  for  sale  of  such  ward's  estate  to  be  made  to  the  circuit 
court,  146. 

43.  Notice  of  application,  147. 

44.  Bond  may  be  required,  147. 

45.  Bond  for  costs  may  be  given,  147. 

46.  Repeal  of  former  laws,  147. 
CONSTRUCTION, 

of  the  statute  of  administration,  276. 
CONSTRUCTIVE  SERVICE,  126-132. 

CONTEMPT, 

attachment  for ;  when  the  remedy  to  compel  distribution,  87,  88. 

CONTEST  OF  ISSUE  OF  VALIDITY  OF  A  WILL, 

may  be  in  probate,  on  appeal  and  in  chancery,  41. 

CONTEST  OF  THE  PROBATE, 

may  be  had  in  the  county  court,  on  appeal  or  in  chancery,  30. 

CONTRACT, 

parol  with  the  intestate,  how  enforced,  89,  275. 

CONTRACTS, 

defined  and  specified,  160-167. 
of  infants  considered,  102. 
of  the  decedent,  275. 
See  Specific  Performance. 

CONVERSION  OF  REAL  PROPERTY,  158,  159, 186-214. 

CONVEYANCES, 

by  infants,  voidable  only,  103. 
See  Forms. 

CONVICTED  CRIMINAL, 
not  to  be  executor,  54. 

COPY, 

of  will  to  accompany  the  letters  testamentary,  49,  298. 

CORPORATE  PROPERTY,  189. 
CORPSES  AND  THEIR  BURIALS,  190. 

COSTS, 

when  recoverable  by  the  creditor,  90. 
claimants,  after  expiration  of  two  years,  to  pay,  275. 
See  Costs  and  Fees. 


INDEX.  363 

COSTS  AND  FEES,  294-300. 

1.  The  statute  of  costs  and  fees  applies  in  probate  matters,  294. 

2.  In  case  of  appeal  in  such  matters,  costs  discretionary,  294. 

3.  Actions   and  proceedings   by  non-residents   and  on   office   bonds; 

security  in  the  first  instance  must  be  given,  or  suit  on  motion  must 
be  dismissed,  295. 

4.  Form  of  preliminary  security,  295. 

5.  The  motion  to  dismiss  must  however  be  made  in  apt  time,  295. 

6.  Security  after  suit  brought,  295,  296. 

7.  Affidavits  of  parties,  296. 

8.  Form  of  security  to  be  given,  when  required  after  suit  brought,  296. 

9.  Non-residents  cannot  be  executors  or  administrators,  guardians  or 

conservators ;  foreign  executors  or  administrators,  guardians  or  con- 
servators, however,  may  be  empowered,  but  must  always,  before 
instituting  proceedings,  file  security  for  costs,  296. 

10.  Non-resident  creditors  of  an  estate  in  probate  must  file  preliminary 

security,  qucere,  296,  297. 

11.  Appraisers'  fees  $2  per  diem,  297. 

12.  Fees  of  the  officers  of  court,  297,  298. 

13.  Compensation  of  executors,  etc.,  299. 

14.  Allowances  to,  for  costs  and  disbursements,  299. 

15.  After  expiration   of   two  years,  claimants  to  pay    costs  in  certain 

cases,  299. 

16.  The  applicant  to  be  discharged  on  resignation  as  executor  or  adminis- 

trator must  pay  the  costs  of  the  application,  299. 

17.  Suits  on  bonds ;  the  party  for  whose  use  suit  is  brought  must  gr»e 

preliminary  security,  and  is  liable  to  pay  costs  on  failure  to  main- 
tain his  suit,  299. 

18.  Delinquent  executors  and  administrators  cited  or  attached,  must  |»ay 

costs,  299,  300. 

19.  In  probate,  as  in  chancery,  costs  are  usually  discretionary,  300. 

20.  Witness  fees,  309. 

21.  Commissioner's  fees,  etc.,  300. 

sheriff"  's  fees,  274. 

COUNTY, 

the  proper,  or  the  venue,  76,  339. 

COURT, 

power  of,  to  compel  obedience  to  orders,  274. 

of  its  own  motion  may  institute  proceedings  to  compel  the  pioductioc 

of  a  will,  16. 
must  be  the  proper  one  in  which  to  proceed,  39. 

See  Jurisdiction  ;  Practice,  274. 

» 

COVENANTS, 

doctrine  of,  when  made  by  the  administrator,  85. 


364  INDEX. 

CREDIBILITY, 

of  witnesses  to  a  will,  40,  45,  47. 

See  Witnesses. 
CREDITOR, 

attesting  rendered  competent,  46. 

laches  of,  what  may  be,  90,  91. 

lien  of  the,  paramount  to  the  rights  of  heirs,  legatees  and  devisees,  64. 
CREDITORS, 

unauthorized  preference  to,  ground  for  removal,  100. 

rights,  how  enforced,  228,  229. 
See  Claims. 

CREDITS,  RIGHTS  AND,  83. 

See  Personal  Estate. 
CRIMINAL, 

convicted,  not  to  be  an  executor,  54. 

CROPS, 

when  real  and  when  personal  estate,  189. 

r>. 

DEATH, 

the  common  lot  of  all,  62. 

at,  the  probate  jurisdiction  begins,  63. 

suit  for  negligence  causing,  344. 

See  Appendix. 
proof  of,  essential  to  jurisdiction,  67. 

DEBT, 

as  a  legal  relation  arising  out  of  a  contract,  164. 

by  specialty,  164. 

by  record.  164. 
DEBTS, 

must  exist  in  order  to  warrant  a  sale  of  real  property,  193 

DECEASED  PERSONS, 

either  testates  or  intestates,  1,  8. 
DECEDENT, 

one  who  has  died,  1. 

there  must  be  a,  to  give  probate  jurisdiction,  39. 
DECREE, 

the  hearing  and,  on  the  probate  of  a  will,  need  not  be  formal,  to  be 

valid,  47. 
DEDIMUS, 

for  the  examination  of  witnesses,  33,  34. 

short  form  of,  with  certificates  of  the  execution  thereof,  38,  39. 

must  be  annexed  to  the  will,  37. 

and  instructions,  33-37. 

to  whom  it  may  issue,  37. 


INDEX.  365 

DE FACTO,  ADMINISTRATOR,  76. 

DEFENSES, 

against  claims  and  against  applications  to  sell  real  estate  to  pay  debts,  88. 

DEFINITION, 

of  a  will,  10,  181. 
of  administrator,  65. 
of  executor,  28. 
of  contract,  160. 
of  distribution,  264. 
of  descent,  251. 

DEGREES  OF  CONSANGUINITY,  268. 

DEMANDS,  215-237. 
See  Claims. 

DEPOSITIONS,  300. 

See  Dedimus. 

DESCENT,  251-270. 

1.  Estates  both  real  and  personal  of  intestates,  after  paying  all  just  debts 
and  claims,  descend  and  are  to  be  distributed,  252,  253. 

1.  To  the  children  and  their  descendants,  in  equal  parts ;  descend- 

ants of  a  deceased  child  taking  the  share  of  their  parents  in 
equal  parts  among  them,  252,  253. 

2.  If   there  be  no   children,    nor  descendant  of  children,  and  no 

widow  or  surviving  husband,  then  to  the  parents,  brothers  and 
sisters  of  the  deceased,  and  their  descendants,  in  equal  parts, 
each  parent  taking  a  child's  part,  or  to  surviving  parent,  if  one 
only  be  living,  a  double  portion ;  and  if  no  parent  be  living, 
then  to  the  brothers  and  sisters  of  the  intestate,  and  their 
descendants,  253. 

3.  If  there  be  a  widow  or  surviving  husband,  and  no  child  or  chil- 

dren, or  descendants  of  a  child  or  children  of  the  intestate,  then 
one-half  of  the  real  and  the  whole  of  the  personal  estate  shall 
descend  to  the  surviving  consort  in  fee,  253. 

4.  If  there  be  a  widow  or  surviving  husband,  and  a  child  or  children, 

or  descendants  of  a  child  or  children  of  the  intestate,  to  the 
surviving  consort  one-third  of  all  the  personal  estate,  253. 

5.  If  there  be  no  child  or  descendant  of  such  child,  no  parent, 

brother  or  sister,  or  descendant  of  them,  and  no  surviving  con- 
sort, then  to  the  next  of  kin  to  the  intestate  in  equal  degree, 
computing  by  the  rules  of  the  civil  law ;  no  representation 
among  collaterals  except  with  the  descendants  of  brothers  and 
sisters  of  the  intestate,  and  no  distinction  between  kindred  of 
the  whole  or  half  blood,  253. 


366  INDEX. 

DESCENT—  Continued. 

6.  If  there  be  a  surviving  consort  and  no  kindred,  then  the  estate 

descends  to  the  survivor,  253. 

7.  If  there  be  no  surviving  consort  or  kindred,  then   the   estate 

escheats  to  the  State,  253. 

2.  Illegitimate  issue  to  inherit  on  the  mother's  side ;  rules  for  specified 

cases,  252,  253. 

3.  Illegitimate  issue  may  be  legitimatized  by  subsequent  marriage  and 

acknowledgment  by  the  father,  254. 
4-9.  Advancement  and  rules  relating  thereto,  254,  255. 

10.  Posthumous   heirs   placed   on   an    equal    footing    with    the    other 

heirs,  255. 

11.  Issue  of  deceased  devisee  or  legatee  to  inherit,  and  how,  255. 

12.  Undevised  and  unbequeathed  real  and  personal  property  of  any  tes- 

tator  to   be   deemed   and   distributed   as  intestate;  administrator 
cum  testamento  annexo  preferred  in  administration,  255,  256. 

13.  Repealed  laws  enumerated  ;  saving  clause,  256. 

14.  Computation  of  the  civil  law  adopted,  256,  268. 

15.  Proof  of  heirship,  256. 

16.  After  accruing  rent,  an  hereditament,  256. 

17.  Husband  and  wife' in  no  case  next  of  kin  to  each  other,  256. 

18.  If  the  intestate  die  without  issue,  leaving  only  a  mother,  the  estate 

goes  to  her,  256. 

19.  The  interest  of  a  posthumous  child  not  affected  by  a  decree  and  sale 

to  satisfy  debts  of  relatives,  e.  g.,  his  mother  and  uncle,  256,  257. 

20.  A  posthumous  child  takes  directly  from  the  parent,  257. 

21.  Distribution  of  personal  estate  not  known  to  the  common  law  except 

under  the  rules  of  the  civil  law,  257. 

22.  Common-law  rules  as  to  the  descent  of  real  property,  discussed  in 

the  light  of  the  authorities,  257,  258. 

23.  The  word  heir  taken  in  a  double  sense;  1.  Designating  the  person 

to  take  the  estate ;  2.  Limiting  the  estate  transmitted  or  conveyed ; 
title  by  descent  or  purchase,  258,  259. 

24.  The  custom  of  gavel-kind,  259-261. 

25.  The  rule  in  Shelley's  case,  261-263. 

26.  Common-law  rules  prevail  unless  the  provisions  of  an  act  of  the 

assembly  embrace  the  very  case  in  controversy,  263. 

27.  Heir  at  common  law  and  statutory  heir,  263. 

28.  Distribution,  264. 

29.  Proof  of  heirship  before  distribution,  264. 

30.  Decisions  in  Illinois  collated,  264-271. 

DESTRUCTION  OF  A  WILL, 

or  secretion  thereof,  tantamount  to  larceny,  16. 

DEVASTA  VIT, 

evidence  of,  etc.,  89. 


INDEX.  367 

DISTINCTION, 

between  personal  and  real  property,  150. 
See  Descent. 

DISPOSING  MIND  AND  MEMOEY,  40,  41,  47. 
DISTRIBUTION,  264. 
See  Descent. 

attachment  for  contempt,  when  the  process  to  compel,  87,  88. 
DIVISION  OF  A  COUNTY, 

venue  in  case  of,  339. 
DOMICILE, 

the  law  of,  governs  in  the  distribution  of  personalty,  160. 

or  home  of  decedent,  as  fixing  the  venue  for  probate  procedure,  14. 

DOWER, 

See  Hill's  Chan.  Pr.;  1  Gross,  230;  Jones'  Forms;  also,  see  Forms; 
Wills,  infra. 

DRUNKARD, 

guardian  may  be  appointed  for  the  habitual,  134. 

DUE  COURSE  0.1?  ADMINISTRATION,  161,  273. 
See  Bond. 

DUTIES, 

the  importance  of  a  faithful  discharge  of,  by  executors,  etc.,  2. 

preliminary  by  the  "executor,  28. 

the  principal,  of  the  executor,  55. 

the  principal,  of  the  administrator,  56. 

of  the  administrator  to  interpose  defenses  to  claims,  86. 

E 

EMINENT  DOMAIN, 

when  the  place  of  burial  is  taken  by  right  of,  for  public  use,  next  of  kin 
to  claim  indemnity,  190. 

ENGLISH  STATUTES, 

1  Jac.  II,  ch.  17,  22  and  23.     Oar.  II,  ch.  10,  etc.,  68. 
See  Statutes. 

ENTRY, 

order  and,  on  presentation  of  a  petition  for  process  to  compel  the  pro- 
duction of  a  will,  15,  16. 
See  Forms. 

ESTATES,  TESTATE  AND  INTESTATE,  1. 
ESTATES,  TESTATE,  10-16. 

See  Wills/  Testate  Estates;  Executors;  Intestate  Estates;  Administrators; 
Estates  of  Infants  or  Minors;  Infants;  Gwrdians;  Estates  of  the 
Incapacitated;  Idiots;  Insane;  Conservators;  Personal  Estate;  Real 
Estate,  etc. 


368  INDEX. 

ESTATES,  INTESTATE,  61-101. 

ESTATES  OF  THE  INCAPACITATED,  107-156. 

ESTATES  OF  MINORS,  102-134. 

ESTOPPEL, 

infants  not  effected  by,  103. 

EVIDENCE, 

by  proper  certificate  of  a  foreign  will,  42. 
letters  testamentary  as,  49,  50. 
See  Witnesses;  Death;  Intestacy. 

EXAMINATION, 

of  witnesses  ore  temis  and  by  dedirmis,  32,  33. 

of  the  witnesses  in  probating  a  will,  33. 
EXCHANGE,  BILL  OF,  164. 

EXCHANGE,  SALE  OR,  181. 

EXECUTOR, 

renunciation  by,  16,  17. 
preliminary  duties  of  the,  28 
the  principal  duties  of,  55. 
instruction  to  the,  28. 
his  bond,  30. 
his  oath,  29. 
criminal  not  to  be,  54. 
de  son  tort,  85. 
power  of,  85. 

EXECUTORS,  53-60. 

I.  Competency  and  appointment,  53,  54. 
II.  Powers  and  duties,  54-57. 
III.  Renunciation,  resignation  and  removal,  57-61. 

I.  COMPETENCY  AND  APPOINTMENT,  53,  54. 

1.  Who  may  be  executors,  53. 

2.  Appointment  of  a  debtor  as  executor,  54. 

3.  A  femme  couverte  may  be,  54. 

4.  A  corporation,  54. 

II.  POWERS  AND  DUTIES,  54-57. 

1.  The  authority,  54,  55. 

2.  How  appointed,  55. 

3.  Executor  de  son  tort,  55. 

4.  Their  principal  duties,  55,  56. 

5.  Distinction  between  their  duties  and  those  of  administrators,  56,  57. 


INDEX.  369 

EXECUTORS—  Continued. 

III.  RENUNCIATION,  RESIGNATION,  AND  REMOVAL,  57-60. 

1.  Renunciation,  57.  , 

2.  Form  of,  57,  58. 

3.  Record  of,  58. 

4.  Resignation,  58. 

5.  Removal,  58,  59. 

6.  Superseding,  petition  for,  59. 

7.  Revocation  of  letters  testamentary,  60. 

EXECUTRIX, 

the  acts  of  an,  bind  the  estate,  84. 

EXPENSES,  ALLOWANCES,  CLAIMS  AND  LEGACIES,  215-237. 

I.  Demands  classified,  the  widow's  award,  funeral  expenses,  *nd 

expenses  of  last  illness,  215-222. 
II.  Claims  against  estates,  222-232. 
III.  Legacies,  233-237. 

I.  DEMANDS  CLASSIFIED,  WIDOW'S  AWARD,  AND  EXPENSES,  215-237. 

1.  Demands  classified,  215,  216. 

2.  To  be  classed  in  order  as  prescribed,  and  paid  class  by  class,  when 

insufficient,  demands  paid  pro  rata,  216. 

3.  Demand    of  executor   or   administrator   to   be    filed   and   defended 

against;  how,  216. 

4.  Demands  to  be  entered  arid  classed,  papers  to  be  filed  and  preserved, 

216,  217. 

5.  Award  to  the  widow  and  children,  or  the  ''widow's  award,"  217, 218. 

6.  Duty  of  appraisers  in  making  the  award,  218. 

7.  Renouncing  or  failing  to  renounce  under  the  will  by  the  widow,  not 

to  affect  her  award,  218. 

8.  Award  to  be  to  the  children,  if  there  be  no  widow  when  decedent 

was  a  householder,  218,  219. 

9.  The  widow  or  surviving  husband  may  renounce  in  writing  all  benefit 

under  the  will,  and  receive  property  as  if  the  decedent  had  died 
intestate,  219. 

10.  Legacies  and  bequests,  if  diminished  by  renunciation,  to  be  equal- 

ized, 219,  220. 

11.  Widow,  when  liable  for  waste,  220. 

12.  Relinquishment  of  specified  articles  and  further  selection  by   the 

widow,  220. 

13.  Statement  thereof  to  the  court,  221. 

14.  Estimate  of  specific  property,  221,  222. 

15.  Expenses  attending  the  last  illness,  222. 
See  Claims  and  Legacies. 

47 


370  INDEX. 

F. 

FAILURE  OF  CONSIDERATION, 

a  warranty  made  by  an  administrator  if  basis  of  negotiable  paper  may 
be  set  up  as,  89. 

FEES, 

the  sheriff  to  have  the  same  as  if  in  the  circuit  court,  274. 
See  Costs  and  Fees. 

FERGUSON  v.  HUNTER, 
the  case  discussed,  47. 

FIDUCIARY  RELATION,  THE,  303,  304. 
FIXTURES,  189,  190. 

FOREIGN  ADMINISTRATORS, 
empowered  to  sue,  87. 

FOREIGN  EXECUTORS  OR  ADMINISTRATORS, 
may  act,  when  and  how,  82. 

FOREIGN  GUARDIAN, 

when  may  sue  and  act,  286,  287. 

FOREIGN  WILL, 
how  evidenced,  42. 
may  be  probated,  evidence  of,  52. 

FORM, 

and  effect  of  judgment  against  personal  representatives,  91,  92. 

FORMS  OR  PRECEDENTS, 
adjudicate,  citation  to,  332 . 

acceptance  of  appointment  of  guardian  and  guardian  ad  litem,  117. 
acceptance  of  resignation  as  executor  or  administrator,  98. 
acceptance  of  resignation  of  a  guardian,  124. 
account,  administrator's,  240-242. 
account  of  personal    estate    and    debts,    preliminary   to   sale   of  real 

estate,  202. 

absence,  affidavit  of,  130. 
administration,  petition  for  letters  of,  77. 
administrator,  oath  of,  79. 

administrator  with  the  will  annexed,  oath  of,  80. 
administrator's  account,  240,  242. 
administrator's  notice  of  settlement  of  claims,  225,  230. 
administrator's  sale  of  personal  estate,  181. 
administrator's  notice  of  sale  of  real  estate,  324. 
administrator's  deed,  322. 
administration,  entry  of  grant  of,  310. 
administration,  letters  of,  79. 


ItfDEX.  371 

FORMS  OR  PRECEDENTS—  Continued. 

administration,  petition  for  revocation  of  letters  of,  99,  100. 

administration,  decree  revoking  letters  of,  101 . 

advertisement,  certificate  of,  51. 

advertisement,  notice  to  guardian,  131. 

affidavit  of  death  and  intestacy,  77. 

affidavit  of  infancy,  117. 

affidavit  of  absence,  130. 

affidavit  of  concealment,  139. 

affidavit  of  non-residence,  129. 

affidavit  of  a  claim  against  an  estate  of  a  decedent,  331 . 

affidavit  of  posting  notices,  182. 

affidavit  for  a  dedimus,  37. 

allowance  to  the  widow  and  children,  221. 

appointment  of  guardian  ad  litem,  117. 

appointment  of  appraiser  to  fill  vacancy,  311. 

appraisers,  order  appointing,  310. 

appraisement,  warrant  for,  171. 

appraisement  bill,  173. 

appraisement,  citation  to  return  inventory  and,  331. 

apprentice,  indenture  of,  319,  320. 

apprenticeship,  indentures  of,  332,  334. 

assent  to  resignation  of  executor  or  administrator,  99. 

attachment  to  compel  the  production  of  a  will,  16. 

attachment  to  compel  the  attendance  of  witnesses,  32. 

award,  widow's,  221. 

bond  of  administrator,  78. 

bond  of  administrator,  with  the  will  annexed,  80. 

bond  of  executor,  30. 

bond  of  guardian,  113. 

bond  by  legatee  or  distributee,  334. 

bill,  the  appraisement,  173. 

bill  of  sale,  183. 

certificate  to  appraisement  bill,  173. 

certificate  of  publication,  printer's,  51,  290. 

certificate  of  the  clerk  to  letters  testamentary,  50. 

certificates  of  proof  under  a  dedimus,  38. 

certificate  of  insanity,  156. 

citation  to  a  minor,  112. 

citation,  notice  and  proof  of  a  nuncupative  will,  51. 

citation  to  adjudicate,  331. 

citation  to  return  inventory  and  appraisement,  331. 

citations,  common  forms  for,  318,  319. 

claims,  notice  of  settlement  of,  225. 

claims,  entry  on  the  adjustment  of,  314. 

codicil  12. 


372  INDEX. 

FORMS  OR  PRECEDENTS—  Continued. 
concealment,  affidavit  of,  130. 
conservator,  petition  for,  154. 
conservator's  inventory,  185. 
commission  to  take  deposition,  33,  34,  321. 

See  Dedimus. 
costs,  execution  for,  320. 
death,  affidavit  of,  77. 
debts,  desperate,  176-179. 
decree  for  removal  of  guardian,  133. 
decree  removing  an  executor  or  administrator,  101. 
dedimus,  33,  34,  321. 
dedimus  (short  form),  38. 
dedimus,  affidavit  for,  37. 
deed,  administrator's,  322. 
deed,  executor's,  325. 

deposition,  commission  to  take,  33,  34,  321. 
desperate  debts,  suggestion  of,  177. 
desperate  debts,  application  to  sell  and  compound,  177. 
distributee,  bond  by,  234. 
dower,  claim  for,  319. 

waiver  of,  319. 

entry  of  grant  of  administration,  310. 
entry  of  adjustment  of  claims,  314. 

entry  of  an  order  to  compel  the  production  of  a  will,  15. 
executor's  bond,  30. 
executor's  oath,  29. 
executor,  petition  to  remove  an,  59. 
executor's  deed,  325. 
executorship,  renunciation  of,  16. 
execution  for  costs,  320. 
guardian's  bond,  113,  334. 
guardian's  inventory,  185. 

guardian,  petition  of,  for  permission  to  resign,  123,  124. 
guardian,  petition  for  a  removal  of  a,  124,  125. 
guardian,  summons  to  a,  125. 
guardian,  decree  of  removal  of,  133. 

See  Constructive  Service. 
guardian  ad  litem,  order  appointing,  117. 
guardianship,  petition  for,  111. 
guardianship,  letters  of,  116,  320. 
guardian's  sale,  report  of,  330. 
indentures  of  apprentice,  319,  320,  332,  333. 
infancy,  affidavit  of,  117. 
inquisition  as  to  insanity,  155. 
insane,  record  of  proceeding  in  case  of  the,  156. 


IXDEX.  373 

FORMS  OR  PRECEDENTS—  Continued. 
insanity,  inquisition  as  to,  155. 
insanity,  statement  of  (petition),  154. 
instruction  for  taking  a  deposition,  34,  35. 
intestacy,  affidavit  of,  77. 
inventory  of  the  estates  of  the  deceased,  170. 
inventory  by  the  guardian  and  conservator,  185. 
inventory,  citation  to  return,  331. 
legatee,  bond  by,  234. 
letters  of  administration,  79. 
letters  of  administration,  petition  for,  77. 
letters  of  guardianship,  116,  320. 
letters  testamentary,  petition  for,  29. 
letters  testamentary,  49,  50. 
letters  testamentary  and  letters  of  administration,  petition  for  revocation 

of,  99,  100. 

lunatico  de  inquirendo,  writ  of,  155. 
minor,  citation  to  a,  112. 
non-residence,  affidavit  of,  129. 

notice  and  citation  to  heirs,  etc.,  of  probate  of  nuncupative  will,  51. 
notice,  publication,  to  guardian,  131. 

notice,  administrator's  sale  of  desperate  claims,  176,  177,  329. 
notice  of  administrator's  sale  of  personal  estate,  181. 
notice,  affidavit  of  posting,  182. 

notice,  administrator's,  of  the  settlement  of  claims,  225. 
notice  of  petition  to  sell  real  estate,  206. 
notice  of  application  by  guardian  to  sell  real  estate,  327. 
notices  of  sale  of  real  estate  by  administrator,  315,  316,  324. 
notices  of  sale  of  real  estate  by  guardian,  329. 
nuncupative  will,  13. 
oath  of  executor,  29. 
oath  of  administrator,  79. 

oath  of  administrator  with  the  will  annexed,  80. 
oaths,  291,  294. 

order  on  granting  a  petition  to  compel  the  production  of  a  will,  15. 
order  appointing  appraisers,  310. 
order  on  the  return  of  the  appraisement  bill,  313. 
order  on  return  of  the  inventory,  311. 
order  for  citation  to  compel  an  inventory,  311. 
order  to  file  an  inventory,  311. 
order  for  the  sale  of  real  estate,  315. 
order  to  compel  sale  of  real  estate,  314,  315. 
order  appointing  a  guardian,  316. 
order  of  confirmation  of  sale  of  real  estate,  316. 
order  revoking  letters,  312. 
order  appointing  administrator  de  bonis  non,  312. 


374  INDEX. 

FORMS  OR  PRECEDENTS  —  Continued. 
pendency  of  suit  to  sell  real  estate,  206. 
petition  for  guardianship,  111. 
order  appointing  a  guardian  ad  litem,  117. 
petition  for  a  guardian  by  minors,  112, 113. 
petition  for  a  guardian  by  a  third  party,  114,  115. 
petition  of  guardian  for  permission  to  resign,  123,  124. 
petition  for  the  removal  of  a  guardian,  124,  125. 
petition  for  process  to  compel  the  production  of  a  will,  15. 
petition  for  letters  of  administration,  77. 
petition  for  letters  testamentary,  29. 
petition  to  supersede  the  appointment  of  an  executor,  59. 
petition   for  revocation  of  letters   testamentary   or    of   administration, 

99,  100. 

petition  for  conservator  of  an  insane  person,  154. 
petition  for  the  sale  of  real  estate,  204. 
petition  for  sale  of  real  estate  by  the  guardian,  327. 
petition  for  restoration  of  a  probate  record,  334,  337 
placita,  308.  309. 
posting,  affidavit  of,  182 . 
preamble  and  recital,  309. 
printer's  certificate,  51. 

production  of  a  will,  petition  for  process  to  compel,  15. 
production  of  a  will,  order  of  entry,  15. 
production  of  a  will,  attachment,  16 . 
proof  of  death  of  a  testator,  317. 
proof  of  will  (common  form),  46. 
proof  of  execution  of  a  will  with  the  record,  48,  49. 
publication  of  notice  to  guardian,  131. 
publication,  printer's  certificate  of,  51. 
publisher's  certificate,  51 . 
real  estate,  notice  of  application  to  sell,  206 . 
real  estate,  sale  of,  petition  for,  204,  205. 
real  estate,  account  preliminary  to  sale,  202. 
recital,  preamble  and,  309. 

relinquishment  of  specific  articles  by  the  widow  or  children,  220. 
removal  of  guardian,  decree  for,  133. 
renunciation  of  executorship,  16. 
renunciation,  forms  of,  324. 
report  of  administrator's  sale  of  real  estate,  323. 
report  of  guardian's  sale,  330. 

representation  of  a  party  to  procure  appointment  of  a  guardian,  327. 
resignation,  acceptance  of  a  guardian's,  124. 
resignation  of  executor  or  administrator,  97,  98. 
resignation  of  executor  or  administrator,  notice  of,  97. 
resignation  of  executor  or  administrator,  acceptance  of,  98. 


INDEX.  375 

FORMS  OR  PRECEDENTS  —  Continued. 

resignation  of  executor  or  administrator,  assent  to,  99. 

residence  unknown,  affidavit  of,  130. 

restoration  of  a  burnt  record,  the  petition  for,  334,  337. 

return  of  cepi  corpus  on  an  attachment,  32. 

revocation  of  letters  testamentary,  etc.,  101. 

sale,  administrator's,  of  personal  estate,  181. 

sale,  bill  of,  183. 

sale  of  desperate  debts,  176,  179. 

sale  of  real  estate,  preliminary  account,  202. 

sale  of  real  estate,  petition  for,  204,  205. 

sale,  report  of  guardian's,  330. 

service  of  a  subpoena,  proof  of,  32. 

statement  of  insanity,  154. 

subptena  for  subscribing  witnesses  to  a  will,  31,  32,  317. 

summons  to  a  guardian,  125. 

testamentary,  petition  for  letters,  29.  • 

testamentary,  letters,  49,  50. 

testamentary,  petition  for  revocation  of  letters,  99,  100. 

testamentary  letters,  decree  of  revocation  of,  101. 

unknown"  residence,  affidavit  of,  130. 

venire  for  a  jury  on  a  writ  de  lunatico  inquirendo,  156. 

waiver  of  dower,  319. 

waiver  of  provisions  in  a  will,  and  assertion  of  claim  of  dower,  319. 

warrant  for  appraisement,  171. 

widow's  award,  221. 

widow's  relinquishment  of  specific  articles,  220. 

will,  11,  12. 

will,  nuncupative,  13. 

will,  petition  to  compel  the  production  of  a,  15. 

will,  proof  of  (common  form),  46. 

witnesses,  subpoena  for,  31,  32. 

FORUM, 

creditors  may  sue  in  the  circuit  court  in  the  first  instance,  88. 
See  Jurisdiction;  Practice. 

FRAUD, 

vitiates  every  contract  which  it  pervades,  120,  162. 
presumptive  and  constructive  trust,  96. 

FRAUDS  AND  TORTS  OF  INFANTS,  103. 

t 
GK 

GOODS  AND  CHATTELS, 
defined,  83,  159,  160,  161. 

See  Assets. 


370  INDEX. 

GRANT  OF  ADMINISTRATION, 
the  regular,  68,  69. 

to  be  preceded  by  proof  of  death  and  intestacy,  67,  68. 
See  Administrators. 

GRIGNON  v.  ASTOR, 

2  How.  319,  discussed,  6,  61.  63. 

GUARDIAN  AD  LITEM, 

appointment,  powers  and  duties  of,  133. 
GUARDIAN,  FOREIGN,  286,  287. 
GUARDIANS,  107-117. 

I. —  COMPETENCY  AND  APPOINTMENT  OF,  107-117. 

1.  Guardians,  jurisdiction  of  the  county  courts  to  appoint,  107,  108. 

2.  Construction  of  the  statute,  109,  110. 

3.  The  court  of  chancery  in  cases  of  divorce,  etc.,  110. 

4.  When  a  minor  may  nominate,  and  when  and  how  guardians  may  be 

appointed  by  the  county  courts,  110. 

5.  The  application  for  appointment,  110,  111. 

6.  Petition  to  be  appointed,  111,  112. 

7.  Citation  to  minors,  112. 

8.  Petition  of  minors  for  a  guardian,  112,  113. 

9.  The  bond,  113,  114. 

10.  Suits  on  bonds,  114. 

11.  Appointment  of  a  guardian  of  a  minor's  estate  when  the  father  is 

living;  petition,  114,  115. 

12.  Other  cases,  115. 

13.  Letters  of  guardianship,  116. 

14.  Guardian  ad  litem  for  a  minor  in  a  justice's  court,  117. 

15.  Guardian  ad  litem  in  a  common-lav*  cause,  in  the  county  or  circuit 

court,  or  in  chancery,  117. 

II. —  THE  POWERS  AND  DUTIES  OF,  118-122. 

1.  Generally,  118. 

2.  A  guardian  cannot  appoint  an  attorney  in  fact  to  execute  a  deed ; 

under  decree  or  order  of  court  of  chancery  he  may  make  compro- 
mises; the  power  to  mortgage  the  ward's  land  is  limited,  118,  119. 

3.  He  may,  under  a  decree,  sell  real  estate,  119. 

4.  Guardians  are  not  allowed  to  make  gain  to  themselves,  119,  303,  304. 

5.  Supervision  of  the  trust,  119. 

6.  The  husband  of  a  guardian   cannot  act  without  express  authority 

from  the  guardian,  119,  120. 

7.  Fraudulent  proceedings  instituted  by  a  mother  are  open  to  attack, 

and  how,  120. 

8.  A  third  person,  generally,  cannot  question  the  power  and  acts  of  the 

guardian.     A  guardian  has  no  power  to  sell  the  real  estate  of  his 


INDEX.  37? 

GUARDIANS—  Continued. 

ward,  unless  authorized  by  a  court  of  competent  jurisdiction,  or 
by  legislative  enactment.     The  power  must  be  strictly  pursued,  it 
is  a  naked  power,  120. 
9.  Fraud ;  caveat  emptor,  how  applied,  120. 

10.  To  act  for  the  ward  generally,  120. 

11.  Guardian  ad  litem,  117,  120. 

12.  Custody  of  child  may  be  willed,  121. 

13.  Eemoval  from  another  State,  and  charge  therefor,  121. 

14.  Custody  may  be  to  one  and  guardianship  to  another,  121. 

15.  Testamentary  guardian,  121 . 

16.  Must  be  commissioned,  121. 

17.  Frugally  to  manage  the  ward's  estate,  121.  122. 

18.  And  educate  the  ward,  122. 

19.  If  the  guardian  neglects  to  educate,  the  court  may  interfere,  122. 

20.  To  invest  funds,  or  be  chargeable  with  interest  for  neglect,  122. 

III.  RESIGNATION  AND  REMOVAL  OF,  122. 

1.  The  court  may  permit  a  faithful  guardian  to  resign,  123. 

2.  Petition  for  permission  to  resign,  123. 

3.  Settlement  of  accounts,  surrender  of  estate,  and  acceptance  of  the 

resignation,  124. 

4.  Guardians  may  be  removed  for  cause,  125 . 

5.  Petition  for  removal;    its  form;  petition  to  be  verified  and  filed, 

124,  125. 

6.  The  summons ;  alias,  pluries,  125,  126. 

7.  Constructive  service,  126-132. 

1.  Non-resident  guardian,  129. 

2.  Absent  guardian,  130. 

3.  Concealed  guardian,  130. 

4.  Residence  of  guardian  unknown,  130, 131. 

8.  The  notice,  131. 

9.  The  publication,  132. 

10.  Jurisdiction  to  appoint  another  guardian,  and  to  enforce  orders  in 

such  matters,  132. 

11.  The  marriage  of  a  female  ward  discharges  her  guardian  as  to  custody 

and  education,  but  not  as  to  property,  133. 

12.  The  hearing,  133. 

13.  The  decree  revoking  letters  of  guardianship,  133. 

GUARANTY,  163. 

H. 

HEARING, 

and  decree  in  the  probate  of  a  will,  47. 
in  examination  in  probate  of  a  will,  35. 
48 


378 

HEIR  AND  HEIRS, 

distinguished,  258,  259. 

not  liable,  except  for  debts,  etc.,  96. 

HEIRS, 

should  proceed  by  bill  in  chancery,  if  dissatisfied  with  the  settlement  of 
the  administrator,  88. 

appearance  by,  to  contest  claims,  to  be  in  the  name  of  the  adminis- 
trator, 88. 

HEIRSHIP, 

to  be  proved  before  distribution,  264. 

HEREDITAMENT, 

accruing  rent  is  a,  92,  93. 

HEREDITAMENTS, 
chattels  real  as,  197. 

HIRING  AND  BORROWING,  164. 

HONEST, 

and  prudent  administration,  if  it  result  in  loss,  not  to  prejudice  the  per- 
sonal representative,  85. 

HOTCHPOT,  103. 

HUSBAND, 

may  administer  on  his  wife's  estate,  75. 

I. 

IDIOTS, 

lunatics  and  other  incapacitated  persons  and  their  estates,  135-156. 

I.  The  insane,  etc.;  decisions,  135-137. 

II.  Appointment  of  conservators,  138. 

III.  Their  powers  and  duties,  139-156. 

IV.  Restoration  and  removal,  144. 

See  Conservators. 

INCUMBRANCE, 

administrator  cannot  sue  to  remove  an,  88. 

INDORSEMENT, 

of  judge  on  a  deposition,  48 . 

by  executor,  85. 
INFANTS  OR  MINORS, 

persons  and  estates  of,  102. 

I.  Infants  or  minors,  102-107. 

II.  Competency  and  appointment  of  guardians,  107-117. 

III.  Their  powers  and  duties,  118-122. 

TV.  Resignation  and  removal  of  guardians,  122. 
See   Guardians. 


INDEX.  379 

INFANTS  OR  MINORS  —  Continued. 

I. — INFANTS  OR  MINORS,  102-107. 

1.  Females  under  eighteen  years  of  age  and  males  under  the  age  of 

twenty-one  in  this  State  are  minors.  102. 

2.  Validity  or  invalidity  of  their  acts  generally,  102,  103. 

3.  Ratification  of  a  sale  of  land,  right  to  hold  property,  etc.,  104. 

4.  Estoppel  and  laches,  not  applicable  to  infants  generally,  104. 

5.  Of  their  property,  104,  105. 

6.  Actions  by  and  against,  105-107. 

See  Guardians. 

INSANE,  THE, 

1.  Evidence  as  to   insanity,  and  presumptions  as  to  sanity,  onus  pro- 

landi,  135. 

2.  Lucid  intervals,  contracts,  etc.,  135,  136. 

3.  Questions  relative  to  sanity  and  insanity,  proper  issues  for  a  jury,  136. 

4.  Facts  indicating  a  disposing  mind  and  eo  converso,  136. 

5.  Mere  mental  weakness  insufficient  to  authorize  equity  to  interfere  in 

matters  of  contract,  136. 

6.  Drunkenness  producing  inability  or  insanity,  however,  is  sufficient, 

136. 

7.  Idiots  and  lunatics ;  conservators ;  their  appointment  and  discharge 

137. 

8.  Insanity  as  a  defense  against  a  criminal  charge,  137,  138. 
See  Conservators  ;  Lunatics. 

INSOLVENT  ESTATES,  275. 

INSTRUCTIONS, 

to  accompany  the  dedimus,  34,  37. 

to  administrators,  76,  77,  238. 
INSURANCE   POLICY,  166. 
INTEREST, 

qualified,  of  the  testator,  83. 

when  an  administrator  is  liable  to  pay,  86. 

when  guardian  must  pay,  86. 

INTENTION, 

to  revoke  a  will,  how  to  be  manifested,  13. 
INTERMENT  AND  RE-INTERMENT,  190. 

INTERPRETER'S  OATH,  291. 

INTESTACY, 

proof  of  death  to  be  made  prior  to  grant  of  administration,  67. 

INTESTATE  ESTATES,  61-102. 
I.  Introduction,  61-64. 
II.  Appointment  of  administrators,  64-82. 


380  INDEX. 

INTESTATE  ESTATES—  Continued. 

III.  Their  powers  and  duties  generally,  82-96. 

IV.  Resignation  and  removal,  96-102. 
introduction,  61-64. 

1.  Estates  generally,  61. 

2.  Priority  of  the  rights  of  creditors,  61. 

3.  Testate  estates  and  intestate  estates  distinguished,  61,  62. 

4.  Administration  of  estates,  62,  64. 

See  Administrators. 

ISSUE, 

of  a  void  marriage,  have  no  right  to  administer,  when,  76. 

ISSUE  IN  CHANCERY, 

relative  to  wills,  43,  44,  47. 

question  for  the  jury,  new  and  original,  43. 

J. 

JUDGE, 

county,  when  the,  is  a  witness,  procedure  to  be  in  the  circuit  court,  45. 

JUDGMENT, 

against  the  administrator,  form  and  effect  of,  91.  92. 
against  the   executor  or   administrator,    to   be  against  the  goods  and 
chattels  in  due  course  of  administration,  85,  86. 

JURISDICTION, 

in  one  country,  not  extended  to  estate  in  another  country,  76. 

the  proper  county,  76. 

as  between  the  counties,  76. 

and  practice,  the  importance  of  a  well-settled,  in  probate,  39,  40. 

should  appear  in  the  petition,  16. 

the  court  must  have,  points  essential  to,  39. 

the  chancery,  specific  performance,  etc.,  94,  95. 

of  probate,  pertains  to  the  estates  of  decedents,  1. 

JURISDICTION  AND  PRACTICE  IN  PROBATE  GENERALLY,  1-9. 

I.  Introduction,  1-3. 
II.  County  courts  —  in  probate,  3-9. 

I. —  INTRODUCTION,  1-3. 

1.  Testate  and  intestate  estates,  1. 

2.  The  probate  of  wills  and  execution  of  trusts  thereby  created,  admin- 

istration of  intestate  estates,  guardians,  conservators,  etc.,  1. 

3.  Subdivision  and  scope  of  the  subject,  1. 

4.  The  high  character  of  the  trusts  involved,  2. 

5.  Care  requisite  in  the  development  of  the  subject,  3. 


INDEX.  381 

JURISDICTION  AND  PRACTICE  IN  PROBATE,  ETC.—  Continued. 
II.  COUNTY  COURTS  —  IN  PROBATE,  3-9. 

1.  They  are  courts  of  record,  4. 

2.  They  have  general  jurisdiction  in  probate,  4. 

3.  Their  judgments,  final  and  conclusive,  unless  reversed,  4. 

4.  Constitutional  and  statutory  provisions,  4. 

5.  Constitution  of  1818,  4. 

1.  Courts  of  probate  .created  in  1821,  4. 

2.  Probate  court  in  1845,  4. 

6.  Constitution  of  1848;  county  courts  from  1849,  4,  5. 

7.  Constitution  of  1870 ;  original  jurisdiction  given  to  the  county  courts, 

in  probate,  5. 

8.  This  jurisdiction  involves  sacred  trusts,  5. 

9.  Chapter  85.  R.  S.  1845,  and  amendments,  5 . 

10.  Terms  for  probate  business  on  the  third  Monday  of  every  month,  5. 
See  Act  1873,  Laws  1873,  p.  87. 

11.  County  clerk,  5. 

12.  The  judgments,  orders  and  decrees  in  probate,  not  to  be  collaterally 

attacked ;  the  rule  in  the  United  States  supreme  court,  6. 

13.  Decisions  in  Illinois,  6-9. 

1.  Incidental  powers ;  no  discretion  in  prescribed  cases ;  exclusive 
jurisdiction  over  personalty;  none  over  realty;  but,  see  Act 
of  February  12,  1849,  §  13,  6,  7. 
•    2.  Rules  of  practice,  7. 

14.  Equitable  jurisdiction  over  claims  against  intestate  estate,  7. 

15.  Statutory  provisions,  7. 

16.  Scope  of  the  subject,  8. 

17.  Deceased  persons,  either  testates  or  intestates ;  testate  estates ;  in- 

testate estates,  8. 

18.  Incapacitated  persons  —  infants    and    other  persons   not  sui  juris, 

etc.,  8. 

19.  Executors,  administrators,  guardians,  conservators,  all  officers  of  the 

court,  8. 

20.  The  law  of  descent,  9  (see  chap.  X),  252. 

21.  Appeals,  9. 

22.  Method  characteristic  of  the  subject,  9. 

JURORS'  OATHS,  284. 

JURY, 

trial  by,  the  question  of  the  sanity  of  a  testator  may  be  submitted  to, 
43-47. 


JUS  REPRESENTA  TWNIS,  THE,  69. 
waiver  of,  31. 


382  INDEX. 

K. 

KINDS, 

of  administrators,  specified,  66. 
KIN,  NEXT  OF, 
who  are,  75. 

personal  property  of  a  minor  vests  immediately  in,  75. 
See  Appendix. 

L. 

LACHES, 

not  attributable  to  minors,  103-107. 

of  a  creditor,  90,  91. 

the  lapse  of  seven  years  usually  a  bar  to  the  grant  of  administration,  76. 

LAW,  CIVIL. 

degrees  of  consanguinity  according  to  the,  268. 
LAWFUL  AGE, 

males  at  21,  females  at  18  years,  are  of,  102. 
See  Jus  Disponendi. 

LEASEHOLD  INTERESTS, 

pass  to  the  personal  representative,  191. 

LEGACIES,  233-237. 

1.  Refunding  bond  to  be  given,  233. 

2.  Duty  of  legatee  to  refund ;  refusal  on  citation  and  demand,  deemed  a 

breach  of  the  bond,  233. 

3.  Payment  of  legacies,  233,  234. 

4.  The  bond,  234,  235. 

5.  Decisions,  235,  237. 

LEGAL  REPRESENTATIVES, 
who  are,  83. 

See  Appendix. 

LETTERS  TESTAMENTARY,  49,  50. 
petition  for,  29. 
revocation  of,  279,  280. 
See  Forms. 

LIABILITY, 

of  heirs  to  ancestor's  debts,  stated,  163. 
LICENSE, 

to  sell  real  estate  must  be  obtained  on  notice,  187. 
LIEN,  163. 

of  creditors,  paramount  to  the  rights  of  heirs,  legatees  and  devisees,  64. 

of  bailees,  163. 
LIMITATION, 

lapse  of  seven  years  usually  a  bar  to  the  grant  of  administration,  76. 


IXDEX.  383 

LIMITATIONS, 

the  statute  of,  applicable  to  minors  and  their  acts,  103. 
the  statute  of,  against  claims,  90. 

LOSS  OF  A  PAPER, 
oath  of,  293. 

LOST  WILL, 

how  and  where  proved,  53. 

LUNATICS,  COMMITMENT  AND  DETENTION  OF,  147-156. 

1.  Jurisdiction  of  the  county  court  may  be  invoked  by  petition,  148. 

2.  Petition  to  be  filed,  process  to  issue,  and  be  served  and  returned,  148. 

3.  Subpoenas  may  issue,  148. 

4.  Jury  trial,  continuance,  148,  149. 

5.  Verdict,  its  form,  149. 

6.  Verdict  to  be  recorded,  order  of  commitment  entered,  and  application 
for  admission  of  respondent  to  superintendent  of  a  state  hospital  for 
the  insane  to  be  made  by  the  clerk,  149. 

7.  When  commitment  may  be  had,  149. 

8.  Communication  to  be  had  between  the   clerk  and  superintendent 
relative  to  the  reception  of  the  respondent,  150. 

9.  Mittimus  may,  if  necessary,  be  issued  by  the  clerk;  its  form,  150. 

10.  Receipt  to  be  given  by  the  superintendent;  its  form,  150. 

11.  Diseased  persons  and  idiots  not  to  be  received,  150. 

12.  Respondent  may  by  order  of  court,  pending  proceedings,  be  restrained 

of  his  liberty,  150. 

13.  Costs  of  the  proceedings  where  respondent  is  not  a  pauper,  151. 

14.  Costs  where  he  is  a  pauper,  151. 

15.  Bond  to  be  given  where  he  is  not  a  pauper,  151. 

16.  Clothing  to  be  furnished  each  patient,  152. 

17.  Clothing  to  be  furnished  where  patient  is  a  pauper   by  the  county, 

152. 

18.  Patient  to  be  removed  when  ordered  to  be  discharged  by  the  trus- 
tees, 152. 

19.  Non-resident  patient  may  be  received,  152. 

20.  Whenever  reason  is  restored  the  patient  may  leave,  153. 

21.  Insane  pauper  may  be  committed  to  a  county  hospital,  153. 

22.  No  one  to  be  committed  without  a  trial  by  jury,  153. 

23.  Penalty    for    receiving  or  detaining    any   person  not    duly   com 

mitted,  153. 

24.  Forms,  154-156. 

M. 

MANURE, 

sometimes  realty,  sometimes  personalty.  190. 


384  INDEX. 

MARRIAG-E, 

issue  of  a  void,  have  no  right  to  administer  on  the  estate  of  a  deceased 
father,  76. 

formerly  worked  a  revocation  of  a  prior  will  in  certain  cases,  42. 
MARRIED  WOMEN, 

may  make  wills,  14. 

husband  may  administer  on  his  wife's  estate,  75. 

can  a  wife  administer  without  her  husband's  consent  ?  75. 
MEMORY, 

disposing  mind  and,  40,  41-47. 
MERCANTILE  TRANSACTIONS,  158. 
MISCELLANEOUS   MATTERS,  275-293. 

1.  The  executor  or  administrator,  or  his  security,  not  chargeable  beyond 

the  assets  of  the  testator  or  intestate,  275. 

2.  Specific  performance  of  the  contracts  made  by   decedent   may   be 

ordered,  275. 

3.  The  books  of  account  of  the  decedent  to  be  subject  to  the  inspection 

of  all  concerned,  275. 

4.  Estate,  if  found  insolvent  after  two  years  from  the  grant  of  adminis- 

tration, to  be  so  entered,  275. 

5.  The  executor  or  administrator  may  be  coerced  to  apply  for  an  order 

to  sell  real  estate,  275,  276. 

6.  County  courts  to  have  power  to  enforce  due  observance  of  its  process. 

judgment,  orders  and  decrees,  the  same  as  the  circuit  courts,  276. 

7.  The  sheriff  to  serve  and  execute  all  process  papers,  276. 

8.  Executors  and  administrators  to  receive  compensation  not  to  exceed 

six  per  centum  on  amount  of  personal  estate,  nor  more  than  three 
per  centum  on  amount  of  proceeds  of  the  real  estate  sold,  with 
allowances  for  costs  and  charges  in  collecting  the  estate  and  defend- 
ing claims,  276. 

9.  Construction  of  the  act  relating  to  administration  to  be  liberal,  and 

to  apply  equally  to  executors  and  administrators,  etc.,  276. 
10.  Repeal  of  former  laws  with  saving  clause,  276,  277. 
MISCELLANEOUS  PROVISIONS  OF  THE  ACT  OF  APRIL  1,  1872. 

1 .  Power  of  administrator  to  collect,  278. 

2.  When  his  appointment  shall  cease. 

3.  General  provisions  as  to  bonds  of  executors  and  administrators,  279. 

4.  Causes  for  revocation  of  letters  testamentary  and  of  administration, 

279,  280. 

5.  Causes  for  removal,  280,  281. 

6.  Surety  on  bond  may  apply  to  be  released,  281,  282. 

7.  New  appointment  to  be  made  if  executor  or  administrator  fail  to 

give  new  bond,  282. 

8.  Letters  cum  testamento  annexo,  282. 


INDEX.  385 

MISCELLANEOUS  PROVISIONS  OF  THE  ACT,  ETC.  —  Continued. 
9.  Co-executor  or  co-administrator  may  be  appointed,  282. 
10.  Liability  of  administrator,  who  has  been  discharged,  to  his  successor 
in  trust,  282,  283. 

MISCELLANEOUS  STATUTES  AND  DECISIONS,  283,293. 

1.  Specific    performance   of   contract  in  case  of  vendor's  death,  how 

enforced,  283-285. 

2.  Executor  or  administrator  may  of  record  discharge  a  mortgage  or 

trust  deed,  285. 

3.  Deposit  of  funds  on  final  settlement  belonging  to  unknown  heirs  or 

claimants  and  non-residents,  285,  286. 

4.  Foreclosure  or  sci.  fa.  necessary  in  case  of  death  of  mortgagee  or 

debtor  requisite,  286. 

5.  When  surety  is  released  in  case  of  death  of  the  maker  of  a  joint 

note,  286. 

6.  Foreign  guardian   may  receive    the  estate  of  his  ward;  procedure 

prescribed,  286,  287. 

7.  Competency  of  parties  as  witnesses,  287,  288. 

8.  Repealing  clause   of  act    of  April  10,    1872  (guardian  and  ward), 

288,  289. 

9.  Miscellaneous  decisions,  290,  291. 

10.  Proclamations  by  the  sheriff  in  opening  and  closing  court,  and  at 

adjournment,  291. 

11.  Oaths,  witnesses,  jurors,  etc.,  291-293. 
MIND, 

disposing,  and  memory,  40,  41-47. 
MINISTERIAL, 

act  of  taking  proof  of  a  will,  quaere,  42,  47. 

MINOR, 

personal  property  of,  vests  immediately  in  the  next  of  kin,  75. 

MISTAKE, 

the  administrator  has  no  authority  to  apply  for  the  correctio:    of,  in  a 

deed  to  his  intestate,  94,  95. 
MONEY, 

may  indeed  partake  of  the  character  of  realty,  191. 

N. 

NECESSITY  OF  ADMINISTRATION, 
there  is  not  always,  75,  76. 

NEGLIGENCE, 

of  another  causing  death,  action  344. 

See  Appendix. 
NEGOTIABLE  PAPER, 

power  of  executors  and  administrators  over,  85. 
49 


386  INDEX. 

NEW  PEOMISE, 

by  infant,  action  should  be  upon,  102. 

NEXT  OF  KIN, 
who  are,  75. 
are  they  included  in  the  term  Personal  Representative?  344. 

See  Appendix. 
action  on  behalf  of,  in  name  of  personal  representative,  for  negligence 

causing  death,  344. 
See  Appendix. 

their  rights  as  to  corpses  and  sepulture,  190. 
to  have  indemnity  in  case  of  disturbance,  190. 

NEWSPAPERS, 

dates  of  first  and  last  publication  to  be  given,  51. 

NON-RESIDENT   EXECUTORS,  ADMINISTRATORS   AND   GUARD- 

IANS, 
to  give  security  for  costs,  273. 

NON-RESIDENT  GUARDIANS,  328,  329. 

NON-RESIDENTS, 

cannot  legally  be  appointed  administrators,  100,  101. 
NOTE, 

the  promissory,  166. 

of  hand,  16(3. 

assignment  of  a,  by  executors,  etc.,  85. 

NOTICE, 

the  propriety  of,  of  the  hearing  before  probating  a  will,  31. 
and  citation  to  heirs  and  legal  representatives,  51. 
proof  of,  by  publication,  51. 
claim  to  be  presented  on  notice,  87. 

to  the  heirs,  of  application  to  sell  real  estate,  essential  to  jurisdiction,  18" 
See  Service. 

NUNCUPATIVE  WILL,  50-53. 
form  of,  13. 
See  Forms. 

NUDUM  PACTUM,  160. 

o. 

OATH, 

the  solemnity  of  an,  305. 
to  executor,  29. 
See  Forms. 

OATHS, 

of  witnesses,  jurors,  etc.,- 291. 
See  Forms. 


LN'DEX.  387 

ONUS  PROBANDI, 

on  a  trial  in  chancery  relative  to  a  will,  43. 
OEDER, 

on  presentation  of  a  petition  for  process  to  compel  the  production  of  a 

will,  15,  16. 

admitting  will  to  probate,  48. 
approving  bond  of  executor,  49. 
for  letters  testamentary  to  issue,  49. 
appointing  appraisers,  49. 

See  Forms. 

ORDERS, 

the  usual  entries  of,  in  probate  of  will,  48,  49. 
See  Forms;  Probate  Record. 


PAPER,  NEGOTIABLE, 

power  of  personal  representatives  over,  85. 

PAPERS,  NEWS, 

date  of  first  and  last,  m  wmcn  a  notice  has  been  published  must  appear, 
51. 

PAROL  CONTRACT, 

with  the  intestate,  how  enforced,  89. 

PARTIES, 

one  of  two  administrators  loaning  money  of  the  estate  has  the  right  of 

action  to  recover  it,  87. 
heir  a  necessary  party,  in  Illinois,  to  the  disposition  of  real  property, 

6,  187. 
as  witnesses,  287,  288. 

See  Notice. 

PARTNER, 

surviving  not  entitled  to  administer,  76. 

PARTNERSHIP,  93. 

PARTNERSHIP  ESTATE,  166,  178. 

duty  of  surviving  partner,  166. 
PERJURY,    - 

the  crime  of,  306. 

PERSONAL  ESTATE  IN  ADMINISTRATION,  157-185. 

I.  Collection  and  disposition  of  by  the  executor  or  administrator, 
157-183. 

II.  In  the  hands  of  guardians  or  conservators,  183-185. 


388  IXDEX. 

PERSONAL  ESTATE  IN  ADMINISTRATION  —  Continued. 

I.  —  COLLECTION  AND  DISPOSITION  OF,  BY  THE  EXECUTOR  OR  ADMINISTRATOR, 

157-183. 

1.  The  retrospect,  159,  160. 

2.  Personal  property  in  due  course  of  administration,  governed  by  the 
lex  domicilis,  160,  161. 

3.  The  title  of  the  personal  representative  of  a  decedent  to  the  personal 
estate,  161. 

4.  His  trust,  162. 

5.  The  cestuis  que  trust,  the  widow,  the  children,  the  creditors,  legatees, 
devisees  and  distributees,  of  heirs,  their  relation  to  the  proceedings 
in  administration,  163,  164. 

6.  Special  proceedings  requisite  to   divest  the  title  of  the  devisees  or 
heirs  to  the  real  property,  165. 

7.  Scope  of  this  chapter,  165,  166. 

8.  The  inventory  to  be  made  and  returned  within  three  months  from 
the  date  of  letters  testamentary  or  of  administration ;  how  made ; 
failure  to  make,  subjects  the  delinquent  to  citation  to  make  inventory 
and  account,  167-169. 

9.  Citation  to  exhibit  inventory  and  account,  169,  170. 

10.  Form  of  inventory,  170,  171. 

11.  The  appraisement,  the  warrant,  the  oath,  171,  172. 

12.  The  bill  of  appraisement,  173. 

13.  Inventories  and  exemplifications  thereof  to  be  prima  facie  evidence, 

173. 

14.  Additional  appraisement,  173,  174. 

15.  Care  and  diligence  required  of  executors  and  administrators  in  get- 
ting in  the  estates  of  their  testates  and  intestates,  174. 

16.  Appraisers'  fees  two  dollars  per  day  each,  174. 

17.  Proceedings  in  case  the  assets  do  not  exceed  the  amount  of  the 
widow's  allowance,  174. 

18.  Collection  and  disposition  of  assets,  174-180. 

19.  Sale  of  personal  property,  180-183. 

II.  —  IN  THE  HANDS  OF  GUARDIANS  OR  CONSERVATORS,  184,  185. 
1    The  guardian  to  return  an  inventory  within  sixty  days  after  his  ap- 
pointment, and  additional  inventory,  184. 

2.  Contents  of  inventory,  184. 

3.  Form  of  inventory,  185.  • 

4.  Conservators  are  required  to  do  the  like,  185. 
PERSONAL  PROPERTY, 

of  a  minor  vests  immediately  in  the  next  of  kin,  75. 
PERSONAL  REPRESENTATIVES, 
who  are,  83. 
See  Appendix. 


INDEX.  389 

PERSONAM,  IN, 

sale  of  real  estate  partly,  and  partly  in  r&m,  62. 
PETITION, 

the  usual  form  of  application  or  representation  to  the  court,  15. 

should  show  jurisdiction,  16. 

requisites  of,  286,  287. 

for  process  to  compel  the  production  of  a  will,  15. 

for  letters  testamentary,  29. 

surety  may  file,  to  be  released,  281. 
See  Forms. 

PEWS, 

in  churches,  sometimes  real  estate,  and  sometimes  personal  estate,  190. 
PLEADING,  287. 

POINTS, 

to  be  proved  to  probate  a  will,  39. 
POLICIES  OF  INSURANCE,  166. 

POWER, 

of  executor  before  probate,  56. 

over  realty,  may  be  given  by  a  will,  it  is  not  conferred  by  appointment 
or  as  administrator,  etc.,  186,  187. 

administrator  takes  only  a  power  over  real  estate,  92. 

of  administrator  over  the  real  estate,  discussed,  94. 
PRACTICE, 

for  the  executor  on  death  of  the  testator,  28,  48. 

for  the  court  in  probating  a  will,  39,  48. 

how  to  be  appointed  administrator,  76,  77. 

the  petition,  77. 

how  to  be  appointed  guardian,  111. 

to  obtain  a  dedimus,  37. 

See  Jurisdiction;  Jurisdiction  and  Practice  generally  ;  Wills;  Executors; 
Wills  ;  Testate  Estates  ;  A  dministrators  ;  Intestate  Estates  ;  Estates  of 
Infants  or  Minors ;  Guardians ;  Infants  ;  Insane  ;  Conservators  ; 
Estates  of  the  Incapacitated;  Drunkard;  Probate  of  Wills  ;  Personal 
Estate  ;  Real  Estate,  etc. 

PRECEDENTS,  FORMS  OR, 

See  Forms;  Probate  Record  ;  Wills.  ' 

PREFRENCE, 

v/here  an  unauthorized  is  given  by  an  administrator,  it  is  ground  for  his 

removal,  100. 
PRESENCE, 

of  the  witnesses  at  the  time  of  the  signature  not  essential,  if  the  testator 
acknowledges  the  will,  etc.,  41. 


390  INDEX. 

PRINTER'S 

certificate,  its  office  as  evidence  of  notice,  51 . 

PRIORITY 

of  judgments  over  claims  of  distributees,  88. 

PRIVITY, 

there  is  none  between  the  administrator  and  the  heir,  when,  193. 

PROBATE, 

jurisdiction  defined,  1-3. 
of  wills,  27-53. 

1.  Definition,  27. 

2.  The  probate  record,  27. 

3.  Preliminary  duties  of  the  executor,  28. 

1.  Before  probate,  28. 

2.  Before  entering  upon  his  duties,  28. 

4.  Practice,  28. 

5.'  Petition  for  letters  testamentary,  29. 

6.  Oath  of  executor,  29. 

7.  His  bond,  30. 

8.  The  hearing  or  examination,  30-39. 

1.  Subprena  ad  testificandum  to  subscribing  witnesses,  31,  32. 

2.  Capias  or  attachment  to  compel  attendance,  32,  33. 

3.  Dedimus  potestatum,  33,  34. 

4.  Instructions  as  to  its  execution  and  return,  34-39. 

5.  Proof  of  wills,  39-48. 

1.  The  decisions,  39-44. 

2.  The  statute  of  1872  (act  March  20),  44-48. 

9 .  Clerk's  entries  and  forms  of  certificate  of  proof,  48,  49. 

10.  The  letters  testamentary,  49,  50. 

11.  Noncupative  will,  50,  52. 

1.  Citation  to  persons  interested,  51. 

2.  Notice  by  advertisement  to  residents  of  other  counties,  51, 

12.  Foreign  will,  52. 

13.  Lost  will,  33. 
record,  27,  301-337. 
record  of  a  will,  48. 

PRODUCTION  OF  THE  WILL,  14-17. 
PROMISSORY  NOTE,  166. 

PROOF, 

certificate  of,  of  a  will,  46. 
of  wills,  evidence,  the  law  of  relating  to,  40-47. 

of  death  and  intestacy  to  be  made  prior  to  grant  of  administration,  67. 
See  Evidence;  Witnesses. 


INDEX.  39  J 

PROFITS, 

when  an  administrator  is  to  account  for,  if  made  by  the  use  of  the  trust 
fund,  86,  87. 
See  Fraud. 

PROPERTY, 

of  infants  ;  sale  of  their  realty,  etc.,  103,  104. 
personal,  defined,  158. 
See  Assets;  Real  Estate. 

PUBLIC, 

sale  of  personal  estate  to  be,  86. 
public  administrator,  70-72. 

PUBLICATION,  51. 

See  Constructive  Service;  Advertisement. 

Q. 

QUALIFICATIONS, 

requisite  for  an  administrator,  73,  74. 

QUALIFIED  INTEREST, 

of  the  administrator  and  absolute  title  to  the  personal  estate,  83. 
See  Personal  Estate. 

R. 

RATIFICATION, 

of  contracts,  what  essential  to,  by  infants,  103. 
See  Infants  or  Minors. 

REAL  CHATTELS, 

as  hereditaments  go  to  the  personal  representatives,  191. 
REAL  ESTATE, 
defined,  187. 
REAL  ESTATE  IN  ADMINISTRATION,  186. 

I.  Through  the  executor,  186-192. 
II.  Through  the  administrator,  192-207. 
III.  Through  the  guardian,  207-213. 
IY.  Through  the  conservator,  142,  146. 

I. —  ADMINISTRATION  OVER  REAL  ESTATE  THROUGH  THE  EXECUTOR,  186-192. 

1.  Power  of  executor  to  sell  land  valid,  if  given  in  the  will,  186,  187. 

2.  Implied  power  of  sale,  187,  188. 

3.  Power  vests  in  those  who  qualify,  where  several  are  appointed  and 

part  refuse,  189. 

4.  Conveyance  to   a  person  as  executor,  his  heirs,  ,etc.,   conveys  a 

fee,  189. 

5.  Co-executor  may  call  a  co-executor  to  account  in  chancery,  190. 


392  INDEX. 

REAL  ESTATE  IN  ADMINISTRATION—  Continued. 

6.  Mortgages  and  leases  by  executors,  on  petition  to  the  county  court, 

191,  192. 

7.  Foreclosure  of  such  mortgages  confined  to  the  county  court  having 

jurisdiction  over  the  property,  i.  e.,  in  the  county  where  it,  or 
a  greater  part  of  it,  is  situated,  192. 

8.  Decree  of  strict  foreclosure  in  such  case  prohibited,  and  redemption 

as  upon  judgments  at  law  prescribed,  192. 

9.  Actions  which  survive,  specified,  192. 

10.  General  directions ;  practice  indicated ;  suggestions,  192. 

IL —  ADMINISTRATION  OVER  REAL  ESTATE  THROUGH  THE  ADMINISTRATOR,  192. 

1.  After  making  a  just  and  true  account  of  the  personal  estate  and  the 

debts  to  the  court,  and  it  is  ascertained  that  the  personal  estate  of 
the  decedent  is  insufficient  to  pay  the  just  claims  against  his  estate. 
enough  of  the  real  estate,  if  there  be  any  held  either  by  legal  or 
equitable  title,  to  pay  the  debts  and  expenses  of  administration, 
may  be  sold,  193. 

2.  Proceedings  to  be  commenced  by  petition  ;  parties,  194. 

3.  Requisites  of  the  petition,  194. 

4.  Cause  to  be  docketed  and  prosecuted  according  to  the  practice  in 

cases  in  chancery,  195. 
See  HiWs  Chan.  Pr. 

5.  Summons  to  issue,  requisites  of,  195. 

6.  Service  of  summons,  196. 

7.  Cases  for  constructive  service ;    affidavit    of    non-residence,    etc., 

196,  197. 

8.  Publication  notice,  197. 

9.  Guardian  ad  litem,  197,  198. 

10.  The  hearing,  order  and  decree  of  sale,  198. 

11.  The  sale  to  divest  title  of  defendants,  199. 

12.  Preliminaries  and  regulations  for  making  sale,  the  notice,  penalties, 

etc.,  200. 

13.  Proceeds  of  sale  to  become  assets  in  the  hands  of  the  administrator, 

for  payment  of  debts,  201. 

14.  Equitable  estates  ;  how  sold  or  made  legal  estates  and  sold,  201. 

15.  The  practice  indicated,  201,  202. 

16.  Forms  for  pleadings,  affidavits,  process,  orders,  decrees,  etc.,  etc , 

202-207. 
See  Appendix;  Forms. 

III. —  ADMINISTRATION  OVER  REAL  ESTATE  THROUGH  THE  GUARDIAN,  207-213. 
1.  The  guardian  may  lease  the  ward's  real  estate  with  the  approval  of 
the  court,  208. 


INDEX.  393 

REAL  ESTATE  IN  ADMINISTRATION  —  Continued. 

2.  He  may  by  leave  of  court  mortgage  the  same,  208. 

3.  Petition  for  order  must  be  filed,  however,  208. 

4.  Foreclosure  of  such  mortgages  only  to  be  made  by  petition  to  the 
court  in  which  letters  of  guardianship  were  granted,  208. 

5.  Decree  of  strict  foreclosure  not  to  be  entered,  and  redemption  as  in 
case  of  judgments  prescribed,  208. 

6.  Proceedings    prescribed    for  the    sale  of    the   ward's    real    estate ; 
petition,  etc.,  etc.,  208. 

7.  The  petition;  its  requisites  to  be  verified  and  filed,  209. 

8.  Notice  to  be  published  and  served,  209. 

9.  Cause  to  be  docketed,  and  proceed  as  if  a  case  in  chancery,  209. 

See  Hill's  Chan.  Pr. 

10.  The  sale,  notice  of  the  time  and  place  to  be  given ;  sale  may  be  on 
credit;  credit,  how  given,  securities  required,  209. 

11.  Eeport  of  sale  to  be  forthwith  made  and  approved  and  recorded,  and 

to  vest  in  the  purchasers  the  title  of  the  property,  209. 

12.  Guardian  to  account  for  proceeds  of  sales  of  real  estate  on  oath,  209. 

13.  Duty  of  court  to  keep  the  securities  of  the  guardian  good,  209,  210. 

14.  Guardian,  if  insolvent  or  in  doubtful  circumstances,  may  be  required 

to  give  to  his  securities  counter-securities,  210. 

15.  The  practice  indicated,  210. 

16.  Forms  for  pleadings,  affidavits,  process,  orders,  decrees,  etc.,  etc.,  210. 

17.  Foreign  guardians  may  sell  when,  210. 

18.  And  under  like  process  and  procedure,  210,  211. 

19.  Sales  to  invest  purchasers  with  the  title,  211. 

20.  Foreign  guardians  must  give  security  for  costs  before  commencing 
any  proceeding,  211. 

IV. — ADMINISTRATION  OVER  REAL  ESTATE  THROUGH  THE  CONSERVATOR.  142,  146. 

Cases  where    an    application  will  lie  to  sell  the  real  estate  of  an 
idiot,  lunatic  or  distracted  person,  specified,  143,  146. 

The  petition,  its  requisities;  parties,  143.  

Notice  to  be  issued  and  served,  as  in  cases  in  chancery,  143. 

Guardian  ad  litem,  143. 

The  hearing  and  the  decree  or  order  of  sale,  143. 

Orders  of  sale,  requisites  of,  143. 

Foreign  conservator  may  apply,  146. 

Proceedings  in  case  of,  146. 

Practice  indicated,  146. 

Forms  for  petition,  affidavits,  process,  etc.,  etc.,  146,  147. 
sale  of,  in  administration,  a  proceeding  partly  in  rem  and  partly  inper- 

sonam,  62. 

only  reached  by  a  special  proceeding  partly  in  rem  and  partly  in   per- 
sonam,  186,  187. 

50 


394  IXDEX. 

RECEIPT, 

for  rents  by  minor,  not  a  ratification,  102. 
RECORD, 

the  probate,  27,  293-329. 

form  of  record  of  the  proof  of  a  will,  48,  49. 

See  Forms. 
REJECTED, 

case  where  a  will  was,  47. 
RELATION, 

.  of  the  administrator's  title  back  to  the  death  of  the  intestate,  162. 

of  the  appointment  of  administrator  back  to  the  death  of  the  intestate,  83 

REM,  IN, 

a  sale  of  real  estate  in  administration,  a  proceeding  partly,  and  partly  in 

personam,  62. 
REMOVAL, 

of  public  administrator,  71. 

See  Executors  ;    Administrators  ;    Guardians  ;   Conservators  ;   Resigna- 
tion ;  Renunciation. 

RENUNCIATION, 

by  an  executor ;  he  is  not  to  intermeddle  before,  with  the  goods,  16. 
form  of,  16,  17. 
RENT, 

accruing,  a  hereditament,  92,  93. 
See  Chattels,  Real ;  Real  Estate. 
REPRESENTATION, 

of  facts  usually  made  by  petition,  15,  16,  301. 

See  Petition ;  Forms ;   Practice;   Jurisdiction,  etc. 
REPRESENTATIVE, 

administrator  the  legal  or  personal  of  the  intestate,  84. 

See  Appendix,  344,  345. 
REPUBLICATION,  344,  345. 

not  necessary  to  involve  subsequently  acquired  lands,  42. 

REQUEST, 

and  waiver  of  the  jus  representationisi  31 
See  denunciation. 

RETURN, 

on  a  writ  of  attachment  for  a  delinquent  witness,  32. 

RESIGNATION, 

and  removal  of  executors  and  administrators.  96-102. 

1.  The  statute  of  1872,  96. 

2.  Petition,  96,  97. 

3.  Order,  97. 

4.  Notice.  97. 


INDEX.  395 

RESIGNATION—  Continued. 

5.  Resignation,  98. 

6.  Record,  98. 

7.  Notice  to  security,  98. 

8.  Assent,  99. 

9.  Removal  and  revocation,  grounds  of,  99. 
10.  Petition.  90,  100-102. 

•  See  Guardians ;  Conservators;  Practice,  etc. 
REVIVAL,  ABATEMENT  AND.  87. 

administrator  of  a  deceased  party,  now  brought  in,  87. 
See  Abatement;  also  2  Hill's  0.  L.  209. 

REVOCATION, 
of  a  will,  13. 

REVOCATION  OP  A  WILL, 

by  a  subsequent  marriage,  41,  42. 
See  Resignation;    Renunciation. 
RIGHT,  THE, 

of  the  administrator  over  the  personal  estate,  86. 
RIGHTS  AND  CREDITS,  83. 
See  Personal  Estate. 

•s. 

SALE  OR  EXCHANGE,  151. 

SALE  OP  PERSONAL  PROPERTY,  180-183. 

SALE, 

bill  of,  183. 

to  be  public,  86. 
SALE  OF  REAL  ESTATE, 

in  administration,  a  proceeding  partly  in  rem  and  partly  in  personam,  62. 
SALES, 

of  personal  property  by  executor,  administrator  of  guardian,  if  bonafide 

to  be  upheld,  84. 
SAMPLE, 

buying  and  selling  by,  162. 

SCIRE  FACIAS, 

will  not  lie  against  the  heir  upon  a  judgment  against  an  administrator,  92. 

SEPULTURE, 

the  right  of,  the  property  of  the  next  of  kin,  190. 
SERVICE, 

of  a  subpoena,  proof  of,  32. 

constructive,  126-132. 
See    Sheriff;  Process. 

SEVEN  YEARS, 

the  lapse  of,  usually  a  bar  to  the  grant  of  administration,  76. 


396  INDEX. 

SHARES, 

incorporations,  190. 

SHELLEY'S  CASE, 

the  rule  in.  261-263. 
SHERIFF, 

See  Process;  Statutes,  132,  178. 
SPECIAL  PROCEEDING, 

necessary  to  divest  the  title  of  realty,  which  descends,  187 
STATUTE  OF  LIMITATIONS,  70. 

See  Laches. 
STATUTE  OF  FRAUDS,  THE,  163. 

STATUTES, 

the  English  (1  Joe.  II,  ch.  17,  22,  23;    Car.  II,  oh.  10),  68. 

the  statute  of  wills,  etc.,  7. 

an  act  to  provide  for  the  appointment  of  guardians  of  habitual  drunkards, 

and  prescribing  the  duties  of  such  guardians,  February  10,  1872. 
Summary  of  act  of  March  20,  1872  (R.  S.  1874,  pp.  1101-1105). 
absence  of  a  witness  by  death  or  removal,  30,  39. 
appeals,  274. 

attesting  creditor  competent,  46. 
circuit  court,  if  the  county  judge  be  disqualified,  procedure   to  be  in 

the,  45,  46. 

custodian,  to  produce  the  will,  14,  16. 

county  judge,  if  a  witness,  procedure  to  be  had  in  the  circuit  court, 
.      45,  46. 

death,  or  a  removal  of  a  witness,  30,  39. 
debtor  as  executor,  54. 
execution  of  wills  out  of  the  State,  52. 

See  Requisites  of  a  Will,  11,  44,  46,  47. 
interested  witnesses  excluded,  38,  42. 

See  Evidence. 

judge,  county,  if  a  witness,  45,  46. 
nuncupative  wills,  15,  16. 

probate  of,  50,  51. 

persons  competent  to  dispose  of  property  by  will  enumerated,  11, 44. 
probate  of  wills,  16,  43,  50. 

See  Probate. 

record  and  preservation  of  wills,  17. 
repeal  of  former  laws,  7,  336. 

See  Statutes. 

requisites  of  a  will,  11,  44,  46,  47. 
revocation  of  wills,  11. 
subscribing  witnesses,  their  duty  to  appear  and  testify,  38,  39. 


INDEX.  397 

STATUTES  —  Continued. 

testimony  of  subscribing  witnesses,  38,  39. 

if  they  be  non-residents,  36,  37. 

See  Dedimus. 

venue  or  proper  county  in  which  to  prove  the  will,  14. 
witnesses,  the  subscribing,  30,  36,  37,  38,  39,  42. 

See  Dedimus;  Evidence;   Certificate;  Record;  Appendias. 

AOT  APRIL  1,  1872  (ADMINISTRATION),  CHAP.  3,  R.  S.  1874,  pp.  103-127. 

SUMMARY,  ACT  APRIL  1,  1872  (ADMINISTRATION)  . 

account,  books  of,  §  128;  274. 

accounts,  §§  112-115;  239,  240. 

actions  which  survive,  §  123 ;  83,  192. 
See  Claims. 

additional  appraisement  to  be  made  if  other  property  be  dis- 
covered, and  within  three  months  after  discovery,  §  57 ; 
173,  174. 

additional  bonds,  executors  or  administrators,  etc.,  may  be  required 

to  give,  §  38 ;  282. 
additional   inventory  is  to  be   returned  whenever  any  other  real 

or    personal    property   becomes    known    to    the   administrator, 

§52;  171. 
administrator,  bond  of,  form,  to  be  made  applicable  to  all  cases, 

mutatis  mutandis,  §  23  :  79,  80. 

administrator  de  bonis  non,  may  be  appointed,  §  37 ;  282. 
administrator's  oath,  form  of,  to  be  made  and  filed,  §  22 ;  79. 
administrator,  de  bonis  non,  if  no  executor  be  named  in   the  will, 

if  the  executor  named  therein  die,  refuse  to  act  or  become  in- 
capacitated or  disqualified,  may  be  appointed  as  if  for  an  intestate 
,     estate,  §  1;  49,  53,  54. 
administrator  to  collect,  §  11 ;  67,  72. 

letters  to,  §  12 ;  72. 

bond  of,  §  13 ;  77. 

oath  of,  §  14;  73. 

power  of,  §§  15,  16 ;  278. 

revocation  of,  §  17  ;  279. 
affidavit  of  applicant  for  letters,  must  first  be  filed  showing  names 

of  heirs,  and  widow  or  widower,  and  probable  amount  of  personal 

estate,  §  20 ;  64,  75. 
allowance  to  executors  and  administrators  may  be  made  for  costs 

and  charges  in  collecting  and  enforcing  claims,  §  133;  276. 
allowance  to  widow,  when  assets  do  not  exceed  property  to  be  trans- 
ferred to  her  and  administration  closed,  §  59;  174. 

appeal,  §§  124,  125;  272. 


398  IXDEX. 

STATUTES  —  Continued. 

SUMMARY,  AOT  APRIL  1,  1872  (ADMINISTRATION). 

applicant  for  letters  must  file  an  affidavit,  showing  date  of  death  and 
probable  amount  of  personal  estate,  and  the  names  of  heirs,  and 
widow  or  widower,  if  known,  §  20 ;  64,  75. 

appraisers,  to  be  three  disinterested  persons,  their  warrant  to  issue 
with  the  letters,  their  powers  and  duties,  form  of  warrant,  vacancy 
in  number  may  be  filled,  §  53 ;  172. 
appraisers  to  take  and  subscribe  an  oath  to  be  indorsed  upon  or 

annexed  to  the  warrant ;  form  of  oath.  §  54 ;  172. 
appraiser's  fees,  fixed  at  two  dollars  per  day  for  necessary  attend- 
ance, to  be  allowed  by  the  court,  §  59;  174. 
assets,  collection  of,  §§  81-96;  174-182. 
See  Personal  Estate. 

if,  after  appraisement,  the  assets  do  not  exceed  the  widow's 
allowance,  the  executor  or  administrator  is  to  report,  and  the 
court,   if  it  find  the   facts  true,  is  to   order  the  same  to  be 
transferred  to  her  and  close  the  administration,  §  59;  174. 
neither  executor,  administrator  nor  security  shall  be  chargeable 
beyond  the  assets  of  the  testate  or  intestate  for  omission,  mis- 
feasance, or  malfeasance  in  pleading,  §  126 ;  275. 
attachment,  citation,  and  on  failure  of  executor  or  administrator   to 
report  deficiency  of  assets,  etc.,  for  widow's  allowance,  §  59;  174. 
attachment,   summons,  subpoenas,   citations,  notices  and  other  pro- 
cess to  be  served  and  returned  by  the  sheriff   or   his   deputies, 
§  132;  276, 

award,  widows',  §§  74-77;  217,  218. 

bill  of  appraisement,  to  be  certified  by  the  appraisers  under  their 
hands    and    seals   to   the     executor     or    administrator,    and   by 
him  to  be  returned  within    three  months  after  grant  of  letters, 
§55;  172. 
bond  of  administrator,  form  of,  §  23 ;  79,  80. 

to  be  changed  and  applied  to  all  cases  of  administration  mutatis 
mutandis,  §  23 ;  79,  80. 

bond   in  case  of   estate    more  than  enough   to    pay  debts,  testator 
may  direct  that  no  security  be  required,  but  the  court  may,  in  its 
discretion,  even  then  require  security,  §  8;  56. 
bond  of  executor,  form  of,  must  be  filed  and  recorded.  §§  6,  24;  28, 

29,  80. 

bond  of  public  administrator  to  be  required  as  in  other  cases,  fail- 
ure to  give  for  sixty  days,  a  vacatur  of  his  office,  and  upon  certifi- 
cate of  the  fact  from  the  county  judge,   the  governor  is   to    fill 
the  vacancy,  §  47 ;  71. 
bond,  suits  on,  may  be  instituted,  and  how,  §  25 ;  278. 


INDEX.  399 

STATUTES—  Continued. 

SUMMARY,  ACT  APRIL  1,  1872  (ADMINISTRATION). 

books  of  account  of  decedent,  §  128;  274. 

cancellation  of  a  will  in  due  course  of  law  to  revoke  the  letters 
testamentary  thereon,  §  29 ;  99,  280. 

care,  custody  and  management  of  the  estate  of  intestates  com- 
mitted to  the  public  administrator,  §  49;  71. 

claims,  §§  60-73,  215,  216,  222,  223,  224. 

commission  and  expenses  earned  and  incurred  by  a  public  admin- 
istrator are  not  affected  by  a  re-grant  of  administration  to 
those  entitled,  §  47;  71. 

construction  of  the  statute,  executor  to  mean  administrator,  and 
administrator  to  mean  executor,  his  to  mean  her,  and  one  to 
mean  two  or  more,  etc.,  whenever  the  sense  requires  it  in  apply- 
ing the  law,  liberally  construed,  §  134;  276. 

contracts  of  decedent  may  be  performed  by  the  executor  or 
administrator,  under  the  direction  of  the  county  court,  §  127 ; 
275. 

costs  and  charges  in  collecting  and  enforcing  claims  as  may  be 
reasonable,  may  be  allowed,  §  133 ;  276. 

costs  and  fees,  appraisers',  $2  per  diem,  §  59 ;  174. 

costs  to  be  paid  by  party  obtaining  letters  fraudulently,  and  on  their 
revocation,  §  27 ;  280. 
See  Costs  and  fees. 

death,  proof  of,  must  be  made  before  administration  can  be 
granted,  §§  18,  20 ;  64,  67,  77. 

decrees,  orders,  etc.,  may  be  enforced ;  county  courts  shall  have 
power  to  enforce  due  observance  of  all  orders,  decisions,  judg- 
ments and  decrees  made  by  them  in  matters  of  administration 
by  process  for  contempt,  and  may  fine  and  imprison  offenders 
as  fully  as  the  circuit  court  may  do  in  similar  cases,  §  131 ;  276. 

diligence;  executors  and  administrators  chargeable  with  due  and 
proper  diligence  in  getting  in  the  estate,  §  58;  174. 

discovery  of  new  assets;  in  such  cases  administration  may  be 
granted  de  novo,  §  59 ;  174. 

division  of  a  county,  on,  if  letters  have  been  granted  to  proceed, 
notwithstanding,  or  on  removal  of  executor  or  administrator  tc 
another  county,  §  9;  339. 

disqualification  of  county  judge,  as  a  material  or  necessary 
witness,  or  a  party  interested,  transfers  the  case  to  the  circuit 
court  of  the  county,  case  to  be  certified  ro  circuit  court,  §  69  ; 
224,  225. 

duty  of  public  administrator  to  protect  estates  generally,  until 
administration,  §  50 ;  71. 


400  INDEX. 

STATUTES  —  Continued. 

SUMMARY,  ACT  APRIL  1,  1872  (ADMINISTRATION). 

executors  and  administrators  chargeable  for  all  estate  which  may 
or  might  after  due  and  proper  diligence  be  received,  §  58,  174. 

executor's  bond,  form  of,  §  7 ;  28,  30. 
must  be  filed  and  recorded,  §  7 ;  28,  30. 

executor,  if  not  named  in  the  will,  if  he  die,  refuse  to  act  or 
is  otherwise  disqualified,  administration  cum  testamento  annexo, 
to  take  place  as  if  testate  had  died  intestate,  §  1 ;  49,  53,  54. 

expenses  incurred  and  commissions  earned  by  a  public  adminis- 
trator not  to  be  affected  by  the  revocation  of  his  letters,  on  re- 
grant  of  same  to  those  entitled,  §  47;  71. 

fees  of  executors  and  administrators  to  be  not  exceeding  six  per 
centum  on  proceeds  of  real  estate,  and  three  per  centum  on 
proceeds  of  personal  estate,  with  reasonable  allowances  for  col- 
lecting and  enforcing  claims,  §  133 ;  276. 

fees  of  sheriff  to  be  the  same  as  for  similar  services  in  the  circuit 
court,  §  132;  276. 
See  Costs  and  Fees. 

foreclosure,  §§  120-122;  191,  192. 

foreign  administrator's  or  executor's  suit  to  insure  a  benefit  of 
domestic  executor  or  administrator,  if  one  be  appointed  pendents 
lite,  §43;  82. 

foreign  executor  or  administrator  may  file  duly  authenticated 
copy  of  his  letters  in  court  in  the  State,  and  enforce  claims  and 
sell  land  to  pay  debts,  §  42  ;  82. 

if  there  be  no  executor  or  administrator  in  this  State,  §  43  ; 
82. 

former  administrator  shall  be  liable  for  devastuvit,  etc.,  §  39 ; 
282,  283. 

form  of  oath  of  executor  or  administrator  cum  testamento  annexo, 
§  6 ;  28,  29,  80. 

oath  to  be  attached  to,  and  form  a  part  of  the  record,  §  6 ;  28, 
29,  80. 

fraudulent  pretenses  in  obtaining  letters  to  work  revocation  at 
the  cost  of  the  administrator,  §  27 ;  280. 

insolvent  estates,  after  the  expiration  of  two  years  from  grant  of 
administration,  to  be  so  reported  and  entered  of  record,  persons 
entitled  to  be  paid  pro  rata,  coste  then  to  be  paid  by  party  suing, 
§129. 

intestacy,  proof  of,  must  be  made  before  granting  administration, 
§§  18,20;  274. 

intestates  leaving  no  relatives  or  creditors,  personal  or  real  estate, 
the  same  is  to  be,  on  the  application  of  any  person  interested 
therein,  committed  to  the  public  administrator,  §  47 ;  71. 


INDEX.  401 

STATUTES—  Continued. 

SUMMARY,  ACT  APRIL  1,  1872  (ADMINISTRATION). 

inventories  and  appraisement  bills  and  authenticated  copies 
thereof,  prt'ma  fade  evidence  only  of  their  several  contents 
respectively,  §§  51,  56 ;  167,  173. 

inventory  to  be  returned  within  three  months  after  letters  are 
granted  containing,  1.  Description  of  quantity,  situation,  and 
title  of  the  real  estate.  2.  Specifying  the  nature  and  amount 
of  all  annuities,  rents,  goods,  chattels,  rights  and  credits,  and 
money  on  hand,  and  whether  the  credits  are  good,  doubtful  or 
desperate,  §  51 ;  174. 
legacies,  §§  116-119 ;  190,  233. 

letters  of  administration,  to  collect,  §§  11,  12 ;  67,  72. 
bond,  under,  §  13 ;  77. 
oath,  under,  §  14;  73. 
power,  under,  §§  15,  16 ;  278. 
revocation,  §  17;  279. 
letters  of  administration,  form  of,  §  21 ;  79. 

to  be  changed  and  applied  mutatis  mutandis  to  all  cases  of 

administration,  §  21 ;  79. 

letters  of  administration  to  widow  or  widower,  next  of  kin,  or  in 
discretion ;  widow  or  next  of  kin  must  apply  within  sixty 
days  after  death  of  decedent ;  creditors  within  the  next  fifteen 
days,  then  the  court  may  exercise  its  discretion,  §§  18,  19,  20  ; 
64,  67,  75,  77. 
letters  testamentary,  form  of,  §  10 ;  49. 

may  issue  on  probate  of  will,  accepting  the  trust  and  giving 

bonds,  §  1 ;  49,  53,  54. 
method  of  making  appraisement,  §  54;  172. 

to  set  down  each  article  with  the  value  thereof  in  dollars 

and  cents  in  columns  as  prescribed,  §54;  172. 
mortgage  and  foreclosure,  §§  120-122;  191,  192. 
nonfeasance,  misfeasance  or  malfeasance  of  executor  or  adminis- 
trator not  to  create  liability  in  certain  cases,  beyond  assets  of 
testate  or  in  testate,  §  126;  275. 
oath  of  administrator,  §  22 ;  79. 
form  of,  §  22 ;  79. 
to  be  made  and  filed,  §  22 ;  79. 
oath  of  executor  or  administrator,  cum  testamenfo  annexo,  §   6; 

28,  39,  80. 
order  to  sell  real  estate  may  be  compelled,  §  130  ;  276. 

form  of,  314. 

process,  notices,  etc.,  to  be  served  and  returned  by  the  sheriff  or 
his  deputy,  §  132 ;  276. 

51 


402  INDEX. 

STATUTES  —  Continued. 

SUMMARY,  ACT  APRIL  1,  1872  (ADMINISTRATION). 

proofs  of  death  and  intestacy  must  be  made  to  obtain  administra- 
tion, §§  18,  20;  64,  67,  75,  77. 

public  administrators  are  to  be  appointed  by  the  governor,  by  and 
with  the  consent  of  the  senate,  one  for  each  county  whenever 
vacancy  may  occur,  who  must  take  the  oath  prescribed, 
§44;  71. 

public  administrator  entitled,  if  the  widow,  next  of  kin  and  cred- 
itors are  all  non-residents,  §  18 ;  64,  67,  77. 

real  estate,  sale  of,  etc.,  §  47;  111,  186,  201. 

relinquishment ;  administration  not  to  be  granted  within  seventy- 
five  days  after  death  of  decedent,  unless  relinquishment  be 
made  by  all  those  entitled;  after  seventy-five  days  court  may 
act  at  its  discretion,  §  19 ;  64,  75. 

removal  of  executor  or  administrator  not  to  affect  the  jurisdiction 
or  power  of  the  court  first  taking  probate  of  the  will,  §  9 ;  339. 
generally,  §§  31-36;  80,  81,  279,  281,  282. 

repealed  acts  enumerated,  §  135 ;  7,  276,  277,  343. 

resignation  may  be  made  by  either  executor  or  administrator  in 
the  discretion  of  the  court,  in  full  settlement  of  accounts  and 
surrendering  estate,  §§  40,  41 ;  96. 

revocation,  discovery  of  will  and  probate  thereof  to  work,  §  28  ; 
280. 

revocation  of  letters  testamentary  by  cancellation  of  the  will  in 
due  course  of  law,  §  29;  99,  280. 

revoking  letters.  If  letters  be  obtained  upon  false  or  fraudulent 
representations  or  pretense,  the  court  must  revoke  them,  §  26 ; 
179,  280. 

saving  clause  of  repealing  act,  suits  pending  and  rights  accrued, 
not  affected  by  the  repeal,  §  135 ;  7,  276,  277,  343. 

sheriff  or  deputies  to  enforce  order,  serve  process  and  execute 
writs,  etc.;  fees  of,  to  be  the  same  as  in  similar  cases  in  circuit 
court,  §  132 ;  276. 

suits  on  bonds  may  be  had  in  the  name  of  The  People  of  the 
State  of  Elinois  for  the  use  and  at  the  cost  of  whom  it  may 
concern,  §  25;  279. 

testamentary  letters,  form  of,  §  10;  49. 

two  or  more  appointed  executors,  if  one  or  more  die,  refuse  tc 
act  or  become  disqualified,  the  survivor  or  survivors  may  take 
the  trust,  §5;  28. 
See  Wills. 

wills,  §§  2,  3 ;  28,  53,  54. 

widow,  her  award,  §§  74-77 ;  217-219. 
may  renounce,  §§  78-80;  219,  220. 


INDEX.  4U3 

STATUTORY  REQUIREMENTS, 

to  the  validity  of  a  will,  recapitulated,  45. 
SUBJECT-MATTER, 

of  probate  jurisdiction  and  c  f  this  treatise  stated,  1. 

See  Preface;  Estates. 
SUBPCENA, 

for  the  subscribing  witnesses  to  a  will,  31. 
service  of,  32. 

See  Sheriff ' ;  Process. 

SUBSCRIBING  WITNESSES, 

to  a  will  to  appear,  subpoena  for,  etc.,  31. 

SUITS, 

for  negligence  causing  death,  86. 
See  Appendix. 

SURETIES, 

extent  of  liabilities  of,  94.  * 

may  petition  to  be  relieved,  281. 

SURVIVING-  PARTNER, 

of  a  deceased  person  not  to  be  appointed  to  administer,  76. 

T. 

TESTATE  ESTATES,  10-60. 
I.  Wills,  10-27. 
II.  Probate  of  wills,  27-53. 
III.  Executors,  53-60. 

TESTATE  AND  INTESTATE  ESTATES,  1. 
See  Estates;  Jurisdiction;  Descent. 

TESTAMENTARY, 

petition  for  letters,  29. 
TESTAMENTARY  CAPACITY, 

must  be  shown,  40,  44,  45,  47. 
TESTAMENTARY  LETTERS,  49,  50. 

See  Practice ;  Executors;  Wills. 

TESTATOR, 

one  who  makes  a  will,  1. 

must  be  of  lawful  age,  of  sound  mind  and  memory,  40,  47. 

TESTS, 

of  an  instrument,  as  a  will,  40-47. 

TITLE, 

of  administrator  to  personal  estate  absolute ;  interest,  however,  qualified. 

83,  84. 
and  right  of  the  administrator  to  personal  estate,  159. 


404  INDEX. 

TITLE  —  Continued. 

to  real  property  not  conferred  by  appointment  as  executor,  adminis 
trator,  guardian  or  conservator,  187. 

See  Descent. 
TORTS, 

the  right  of  action  for,  how  far  transmitted  to  the  administrator,  83,  84. 

TORTS,  FRAUDS  AND, 
of  infants,  103. 

See  Actions  (which  survive). 

TREES, 

when  personal  estate,  and  when  real  estate,  189. 
TRUST  RELATION,  THE, 

of  the  administrator,  162. 

TRUSTS, 

the  due  execution  of,  the  peculiar  province  of  the  probate  jurisdiction,  1. 
the  high  character  of  those  involved  in  probate,  3,  4. 

V. 

VENDOR  AND  VENDEE,  345. 

VENUE, 

or  proper  county,  14,  76,  339. 
on  division  of  a  county,  339. 

w. 

WARRANTY,  162. 

by  administrator  not  good,  failure  of  consideration.  88,  89. 

WILL, 

defined,  161. 

must  be  reduced  to  writing,  40,  47 . 

must  be  attested,  40,  47. 

nuncupative,  form  of,  13. 

nuncupative,  50-53. 

lost,  how  .and  where  probated,  53. 

foreign,  evidence  of,  42. 

revocation  of,  13. 

production  of  the,  14. 

attachment  to  compel  the  production  of  a,  15,  16. 

copies  of  the,  to  go  with  the  letters  testamentary,  49. 

WILLS, 

foreign,  may  be  probated,  52. 
evidence  of,  52. 
married  women  may  make,  14. 
See  Married  Women. 


INDEX.  405 

WILLS  —  Continued. 
generally,  10-27. 

1.  Definition,  10,  151. 

2.  Who  may  make  a  will,  10, 11. 

3.  Requisites  of  a  will,  11. 

4.  Nuncupative  will,  11. 

5.  Codicils,  11. 

6.  Forms,  11. 

1.  Of  a  will,  11. 

2.  Of  a  codicil,  12. 

3.  Of  a  nuncupative  will,  13. 

7.  Revocation,  13,  14. 

8.  Production  of  the  will,  14-17. 

1.  Venue,  14. 

2.  Proceedings,  14,  15. 

3.  Petition  for  process  to  compel  the  same,  15. 

4.  Order  for  process  and  the  entry,  15. 

5.  Attachment  to  compel  the  production  of  a  will,  16. 

6.  Jurisdiction,  facts  essential  to,  must  appear,  16. 

7.  The  withholding  the  will,  16. 

8.  Destruction  or  secretion,  a  felony,  16. 

9.  Compulsory  process,  16. 

10.  Renunciation,  how  made  and  recorded,  16,  17. 

11.  Administrator  with  the  will  annexed,  17. 

9.  Construction  of  wills,  17-27. 

absolute  prohibition  of  marriage  until  21  years  of  age,  in  a  will,  good,  2S 

annuity,  homestead  election  of  widow,  17, 18. 

application  to  sell  lands  by  executor  when  necessary,  18. 

bequest  to  a  creditor,  and  his  claim  in  view  of  it,  20. 

children,  their  existence  does  not  affect  the  widow's  right  to  one-third 

of  the  personal  estate,  18. 
claim  of  the  widow  to  the  personal  estate,  17. 
courts  give  effect,  if  possible,  to  every  clause  in  a  will,  17. 
creditor  as  a  legatee,  20. 

devise  "during  her  widowhood"  does  not  pass  an  estate  of  inheritance,  18. 
devise  and  bequest  to  ''heirs  at  law,"  19. 
devise  to  "  G-.  S."  good  in  the  heirs  of  Gr.  S.,  20. 
devise  for  life,  with  the  jus  disponendi,  20,  21. 
devise  of  lands  to  be  sold  and  proceeds  distributed,  21. 
disherison,  words  of,  20. 
dower  act,  construed,  17. 
fee  simple  estate  devised,  22. 

fee  simple  estate  subjected  to  a  trust  and  liable  to  execution,  22. 
election  by  widow,  annuity,  homestead,  17,  18. 


406  INDEX. 

WILLS—  Continued. 

execution,  a  life  estate  under  a  will  is  subject  to,  19. 

executor,  power  limited,  application  to  sell  lands  then  necessary,  18. 

homestead,  annuity,  election  by  the  widow,  17,  18. 

lands  out  of  the  State,  when  included,  22. 

life  estate  under  a  will,  held  subject  to  execution,  19. 

limited  interest  in  realty,  question  of  intention,  as  to  a  devise  of,  21,  22 

.limited  and  absolute  estates.  22,  23,  24,  25,  26. 

limited  estate,  only  created  by  the  term  "  during  her  widowhood,"  18. 

marriage  may  be  prohibited  in  a  will,  when,  26. 

married  woman   may  elect  to  take  land  or  money  under  a  will,  21. 

personal  estate,  qualified  interest  in,  bequeathed,  19,  20. 

personal  estate,  claim  of  the  widow  to  the,  17. 

perpetuity,  a  bequest  not  void  for,  in  a  certain  case,  26. 

power  to  sell  lands  by  executor,  limitation  of,  to  certain  lands,  18. 

qualified  estate  in  personalty  under  a  will,  19,  20. 

real  estate,  power  of  executor  limited  to  sale  of  certain  lauds,  18. 

real  estate  liable  as   a  secondary  fund  to   testator's   debts   and   funeral 

expenses,  21. 

renunciation  of  will  by  the  widow,  17. 

renunciation  by  widow  of  the  provisions  of  a  will,  case  of,  18. 
terms  in  a  will,  when  interpreted  according  to  their  strict  legal  import, 

18. 

"  widowhood,  during  her,"  a  term  of  limitation,  18. 
widow's  allowance,  in  case  of  renunciation  of  a  will,  17. 

See  Descent;  Jurisdiction;  Probate;  Shelley's  Case,  etc. 

WITHHOLDING, 

the  will  subjects  the  custodian  to  a  penalty  of  $20  per  month,  16. 
WITNESS, 

credible,  40,  45,  47. 

when  the  county  judge  is,  proceedings  to  be  had  at  the  circuit,  45,  46. 

attachment  for,  32. 

service  of  subpoena  on,  32. 
WITNESSES, 

the  subscribing,  to  a  will,  31. 

examination  of  the,  in  probating  the  will,  33. 

effect  of  certificate  of,  as  evidence,  43. 

parties  as,  287. 
WOMEN,  MARRIED, 

may  make  wills,  14. 
See  Husband. 

WRITING, 

a  will  must  be  in,  40-47,  263. 
See  Forms ;  Process. 


INDEX.  407 

WRIT  OF  ERROR. 

See  Appendix  ;  Appeals. 

WRONGS, 

of  decedent,  actions  for,  how  far  transmitted  to  the  administrator,  83. 
See  Actions  (which  survive),  §  123,  Act  April  1,  1872. 


LAW  LIBRARY 

UNIVERSITY. OF  CALIFORNIA 
LOS  ANGELES 


SFP      6  1952 


A     000678666     9 


